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VOLOKH v. JAMES COMPLAINT

VOLOKH V. JAMES ORDER GRANTING PRELIMINARY INJUNCTION

In 2022, New York enacted a law with the goal of regulating disfavored—but constitutionally protected—speech online. The , titled “Social media networks; hateful conduct prohibited,” ostensibly targets “hateful conduct,” but in reality requires online platforms to “respond [to],” “address” and “handle” protected speech that someone, somewhere finds “humiliating” or “vilifying” toward a group based on race, color, religion, or other protected categories.

The law is both unconstitutionally overbroad—it threatens vast swaths of protected speech on the internet—and unconstitutionally vague, in that it fails to define key terms and provides social media platforms with little guidance on how to properly comply.  It also compels platforms to speak, on a subject of the state's choosing, from the state's perspective on it, when they might prefer to remain silent or approach the matter as seen from their own viewpoints. Speech may be hateful, insulting, or offensive, but that doesn’t mean the government can regulate it. The United States has consistently chosen “to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”

On Dec. 1, 2022, FIREsued New York’s Attorney General in the United States District Court for the Southern District of New York on behalf of Eugene Volokh, noted First Amendment scholar and co-founder of The Volokh Conspiracy blog, and online platforms Rumble and Locals, seeking to stop enforcement of New York’s unconstitutional law.

On February 14, 2023, the district court issued a preliminary injunction broadly prohibiting the law’s enforcement, holding plaintiffs were likely to succeed in showing it violates the First Amendment as a content-based law that unconstitutionally compels speech. The court held strict scrutiny applies and the law cannot survive because it is not narrowly tailored to serve a compelling governmental interest. It also held Volokh, Rumble, and Locals were substantially likely to succeed on their facial First Amendment vagueness and overbreadth challenges because, even though the law does not require social media networks to remove “hateful” content or penalize users for purveying it, the law could profoundly chill users’ protected expression, especially given the ambiguity of the law’s key terms such as “vilify” and “humiliate.”

New York appealed the preliminary injunction to the United States Court of Appeals for the Second Circuit, which issued a  on August 1, 2025, neither affirming nor reversing the preliminary injunction. The Second Circuit instead opted to ask the New York Court of Appeals, the state’s highest court, to interpret the statute, even though the panel unanimously held that if the law is given its “most natural” reading, it is unconstitutional. But the majority of the 2-1 split panel was also open to the state’s claim that the law merely requires “neutral disclosure that does not incorporate or affirmatively encompass the State’s definition of ‘hateful conduct’” in social media policies and reporting mechanisms, which would render those requirements constitutionally permissible compelled commercial disclosures. The dissenting judge opined that the law is unconstitutional even under the state’s watered-down reading because it threatens social media platforms with fines if they fail to police content in precise accordance with their content moderation rules the law requires, and grants the state enforcement discretion over whether those content moderation decisions comport with those rules.

FIRE is now awaiting the New York Court of Appeals’ response to the Second Circuit’s referral.