Volokh v. James

Court: U.S. Court of Appeals for the Second Circuit

Date Filed: Sept. 26, 2023

Background: In June 2022, New York Gov. Kathy Hochul (D) signed into law a bill that included new regulations governing how social media platforms police “hateful conduct” online. The law specifically requires “social media network(s)” to disclose how they will “respond to and address … reports of incidents of hateful conduct.”

In December 2022, Eugene Volokh, a law professor who operates the legal blog Volokh Conspiracy, filed a motion for preliminary injunction with the U.S. District Court for the Southern District of New York to block the state from enforcing the Hateful Conduct Law, claiming that it is unconstitutional and that it runs afoul of Section 230 of the Communications Decency Act.

The district court granted the preliminary injunction. State officials then appealed to the U.S. Court of Appeals for the Second Circuit.

Our Position: The Second Circuit should affirm the district court.

• The First Amendment’s protection for the exercise of editorial judgment is virtually absolute.
• New York’s Hateful Conduct Law chills the exercise of editorial judgment by compelling speakers to disclose or alter their editorial standards.

Quote: “Compelling publishers to disclose or alter their editorial standards … burdens fully protected expression speech twice over: by discouraging the publication of speech that the mandate makes it costlier or riskier to distribute, and by interfering with a news organization’s freedom to articulate its editorial practices on its own terms. On each front, the statute threatens the freedom of the press.”

Related: The Reporters Committee has filed several friend-of-the-court briefs in support of legal challenges to state laws governing how social media companies moderate content posted on their platforms, including in Texas and Florida.

Update: In an order issued in February 2024, the Second Circuit said it would hold the case in abeyance until the U.S. Supreme Court resolves NetChoice v. Paxton and Moody v. NetChoice.