Case 23-356, Document 149, 07/11/2024, 3629092, Page1 of 14
`
`Catherine O’Hagan Wolfe
`
`Via ECF
`
`July 11, 2024
`
`Clerk of Court
`U.S. Court of Appeals for the Second Circuit
`Thurgood Marshall United States Courthouse
`40 Foley Square
`New York, NY 10007
`
`Re: Volokh, et. al. v. James, No. 23-0356: Plaintiffs-Appellees’
`
`Supplemental Letter Brief regarding NetChoice decision
`
`Dear Ms. Wolfe:
`
`Plaintiffs-Appellees Eugene Volokh, Rumble Canada Inc., and Locals
`Technology Inc., submit this Supplemental Letter Brief pursuant to the Court’s
`post-argument order directing the parties to address the effect on this case of the
`U.S. Supreme Court’s decision in Moody v. NetChoice, LLC, ___ U.S. ___, 2024
`WL3237685 (July 1, 2024) (“NetChoice”), vacating NetChoice v. Paxton, 49 F.4th439
`(5th Cir. 2022), and NetChoice v. Moody, 34 F.4th 1196 (11th Cir. 2022). Order, ECF
`No. 141, February 23, 2024.
`The principles the Supreme Court articulated in NetChoice reinforce
`Plaintiffs-Appellees’ arguments and the district court’s reasoning in support of the
`
`preliminary injunction in this case. The NetChoice decision makes clear that: (1) a
`“compil[es] . . . speech it wants in the way it wants”; (2) state interference with
`websites’ messages; and (3) altering a websites’ message to tilt the marketplace of
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`website engages in First Amendment-protected editorial judgment when it
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`those editorial processes violates the First Amendment because it alters the
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`ideas in the state’s preferred direction is “very much related to the suppression of
`free expression” and, simply put, “not valid.” 2024 WL 3237685, at *11, *12, *15.
`New York’s Online Hate Speech Law contravenes these principles—
`especially (though not solely) by commandeering websites’ editorial processes
`with the explicitly viewpoint-based goal of “reducing” so-called “violent and
`extremist content.” Appellant’s Br. 53. NetChoice thus confirms that this Court
`
`should affirm the preliminary injunction against the enforcement of New York’s
`
`law.
`
`510 Walnut Street, Suite 900 Philadelphia, PA 19106
`phone: 215-717-3473 Fax: 215-717-3440
`thefire.org
`
`

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`Case 23-356, Document 149, 07/11/2024, 3629092, Page2 of 14
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`Catherine O’Hagan Wolfe, Clerk of the Court
`U.S. Court of Appeals for the Second Circuit
`July 11, 2024
`Page 2 of 14
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`I.
`Commandeering Websites’ Editorial Judgment in a Viewpoint-Based
`Way to Tilt Public Debate Away from “Hate Speech” Violates the First
`Amendment.
`NetChoice reaffirms the “core teaching” of decades of the Supreme Court’s
`
`compelled speech jurisprudence: “The government may not . . . alter a private
`
`speaker’s own editorial choices about the mix of speech it wants to convey.” 2024
`WL 3237685, at *12. The First Amendment protects websites’ editorial decisions
`when those decisions create the sites’ own “distinctive expressive offering”—just
`like the editorial decisions of newspaper editors, cable TV providers, and parade
`organizers. Id. at *14. Therefore, courts must safeguard websites’ ability to
`“exclude [an] unwanted message, free from government interference.” Id. at *16
`(citing Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241, 258 (1974)).
`But New York’s Online Hate Speech Law, on its face, forces countless
`websites to create, publish, and promote the State’s chosen content about “hateful”
`speech, as defined by the State—directly interfering with the websites’ editorial
`choices about what messages to convey. As in NetChoice, the law “targets those
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`expressive choices . . . by forcing [websites] to present and promote content” and,
`
`in Plaintiffs-Appellees’ case, compelling them to present content “that they regard
`as objectionable.” 2024 WL 3237685, at *14.
`NetChoice also confirms the illegitimacy of speech regulations aimed at
`“tilting public debate in a preferred direction.” Id. at *16 (cleaned up). New York’s
`law, as explained in its briefing and by numerous state policymakers, is designed to
`do exactly that—to tilt the online marketplace of ideas away from protected speech
`the State regards as “hateful.” This goal “is very much related to the suppression of
`free expression” and “is not valid” under any level of constitutional scrutiny. Id.
`
`at *15.
`
`A. NetChoice held that interfering with websites’ editorial choices,
`as New York’s law does, violates the First Amendment.
`New York’s Online Hate Speech law violates the free speech principles
`reaffirmed in NetChoice, which examined the constitutionality of state laws that
`compel social media platforms like Facebook and YouTube to publish third-party
`speech they otherwise would not. The Court surveyed decades of its compelled-
`speech precedent to reaffirm their core throughline: “An entity exercising editorial
`discretion in the selection and presentation of content is engaged in speech
`activity.” Id. at *11 (cleaned up). Accordingly, “[w]hen the government interferes
`
`with such editorial choices . . . it alters the content of the compilation” and “in so
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`Case 23-356, Document 149, 07/11/2024, 3629092, Page3 of 14
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`Catherine O’Hagan Wolfe, Clerk of the Court
`U.S. Court of Appeals for the Second Circuit
`July 11, 2024
`Page 3 of 14
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`doing . . . overrid[es] a private party’s expressive choices.” Id. This violates the First
`
`Amendment.
`As the Court explained, its “seminal case” of Miami Herald Publishing Co. v.
`Tornillo established that the state may not “substitute governmental regulation for
`the crucial process of editorial choice.” Id. at *10 (cleaned up). Likewise, the Court
`reaffirmed the holdings of Pacific Gas & Electric. Co. v. Public Utilities Commission
`of California and Turner Broadcasting System, Inc. v. FCC, each of which makes
`clear that the state may not command entities engaged in expressive activity “to
`carry [speech] they would not otherwise have chosen” because doing so interfered
`with editorial discretion and altered their expression. Id. “The capstone of those
`precedents,” Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston,
`Inc., upheld a parade organizer’s decision “to exclude a message they did not like
`from the communication they chose to make.” Id. at *11 (cleaned up). The First
`Amendment ensured this choice “was their decision alone.” Id.
`NetChoice explains that a website’s expressive choices of what to display as
`part of their “speech product[s]” enjoy protection equal to those of newspapers,
`newsletters, cable networks, and parades, noting that “analogies to old media, even
`if imperfect, can be useful,” id. at *12, because the “basic principles of the First
`Amendment ‘do not vary’” for online speech. Id. at *12 (quoting Brown v.
`Entertainment Merchants Assn., 564 U. S. 786, 790 (2011)). “The choice of material,
`the decisions made as to content, the treatment of public issues—whether fair or
`unfair—all these constitute the exercise of editorial control and judgment. For a
`paper, and for a platform too.” Id. at *14 (cleaned up). Importantly, whether a
`website’s expressive content originates from the site or third parties, “the larger
`offering is the platform’s” through which it provides a “distinctive expressive
`offering.” Id. First Amendment protection thus extends also to “messages that the
`posts” on a website deliver. Id. at *15.
`State laws that compel websites to display content they otherwise would not
`include as part of their expression, therefore, likely violate the First Amendment.
`Id. at *12 (“Texas is not likely to succeed in enforcing its law against the platforms’
`application of their content-moderation policies to the feeds that were the focus of
`the proceedings below.”). The Texas and Florida statutes at issue in NetChoice, at
`least in certain applications, prohibited large social media platforms from
`disfavoring user posts based on viewpoint or content. To be sure, the Supreme
`Court remanded the cases to determine the laws’ scope and whether they were
`facially unconstitutional. See infra Part II. But the Court’s language makes clear
`that regulations of platforms’ own expressive activities will be found
`unconstitutional based on the Court’s “core teaching” regarding the First
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`

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`Case 23-356, Document 149, 07/11/2024, 3629092, Page4 of 14
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`Catherine O’Hagan Wolfe, Clerk of the Court
`U.S. Court of Appeals for the Second Circuit
`July 11, 2024
`Page 4 of 14
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`Amendment. Id. at *12. In forcing websites to make public statements about their
`hate speech policies and pressuring them to change their editorial policies and how
`they implement them, the laws “alter[] the platforms’ choices about the views they
`will, and will not, convey.” Id. at *14. As the Court noted, it has “time and again held
`that type of regulation to interfere with protected speech.” Id. By requiring
`websites to include in their own expression a message they do not wish to send,
`New York’s law runs afoul of this longstanding precedent.
`B.
`Each of the Online Hate Speech Law’s requirements unlawfully
`targets online platforms’ editorial decision-making.
`Like the Texas and Florida laws, New York’s Online Hate Speech Law targets
`
`websites’ editorial decision-making. As NetChoice reiterates, when platforms that
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`the display will be ordered and organized, they are making expressive choices.” Id.
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`produce compilations of content “decide which . . . content [to] . . . display, or how
`at *15. Importantly, this principle “is as true when the content comes from third
`parties as when it does not.” Id. at *11. The First Amendment thus bars New York
`considered “as a whole.” Id. at *15. The State cannot “advance some points of view
`to create, display, and promote a policy and complaint mechanism, and “respond
`
`by burdening the expression of others.” Id. at *16 (quoting Pac. Gas & Elec. Co. v.
`Pub. Utilities Comm’n of California, 475 U.S. 1, 20 (1986)).
`Each element of the Online Hate Speech Law requires countless websites
`
`from compelling websites to include state-mandated content in their expression if
`it would “alter or disrupt” those expressive choices, id. at *10, or to the extent they
`interfere with the “overall speech environment” of their “speech product[s]” when
`
`[to] and address” complaints, in order to relay the State’s viewpoint-based
`messages about hate speech. In doing so, the law’s requirements work together as
`part of a unified scheme to commandeer websites’ First Amendment-protected
`editorial judgment, alter their expressive offerings, and disrupt the message of
`websites that object to the State’s preferred viewpoint on hate speech. For this
`reason, the State errs when it attempts to frame the policy requirement and
`reporting mechanism as two wholly separate requirements that must be
`scrutinized separately. See Appellant’s Reply Br. 1 (critiquing what it sees as the
`district court’s refusal to “separately consider” each of the law’s provisions); but see
`Appellees’ Br. 67.
`Policy Requirement
`The Online Hate Speech Law commands countless websites to display “a
`clear and concise policy readily available and accessible on their website and
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`Case 23-356, Document 149, 07/11/2024, 3629092, Page5 of 14
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`Catherine O’Hagan Wolfe, Clerk of the Court
`U.S. Court of Appeals for the Second Circuit
`July 11, 2024
`Page 5 of 14
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`application” stating how they “will respond [to] and address” user reports of hate
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`speech on the site.1 N.Y. Gen. Bus. L. § 394-ccc(3). On its face, the statute requires
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`websites, at a minimum, to create and display a public stance on the controversial
`and complex subject of hate speech, as defined in the statute, see § 394-ccc(1)(a).2
`But a speaker’s choice “to exclude a message” from their speech is “their decision
`alone.” NetChoice, 2024 WL 3237685, at *11 (cleaned up). New York can no more
`force websites to display the State’s mandated policy than Texas can compel
`Facebook to host certain third-party speech in its News Feed.3 Both laws
`
`
`1 Even assuming, as Appellant argues, that New York’s law allows websites to
`choose whether they respond to hate speech reports—a dubious proposition, see
`Appellants’ Reply Br. 14 and infra Section I.B. “Response Requirement”—the law
`certainly requires sites to say something about whether hate speech is a favored or
`disfavored part of the site’s overall speech environment. Appellees’ Br. 45–46. This
`requires platforms to express an opinion, contrary to the State’s claim that its law
`“does not demand disclosure” of one. Appellant’s Reply Br. 16. Plaintiffs-Appellees
`object to this demand, which violates the First Amendment’s longstanding
`protection of a speaker’s right to choose “what not to say.” See Appellees’ Br. 33;
`NetChoice, 2024 WL 3237685, at *18.
`2 The complexity of the State’s definition and potential for ten different policies
`for how a website will respond to “hateful” speech about each of the ten protected
`classes referred to in the law makes this disclosure particularly onerous. See § 394-
`ccc(1)(a).
`3 New York has argued the Supreme Court’s refusal in NetChoice to review
`Zauderer’s applicability to Texas’s general disclosure requirements connotes the
`Court’s approval. Appellant’s Reply Br. 8 & n.2, 30. Not so. “The denial of a writ of
`certiorari imports no expression of opinion upon the merits of the case, as the bar
`has been told many times.” United States v. Carver, 260 U.S. 482, 490 (1923). Here,
`there are a variety of procedural reasons the Court may have chosen not to take up
`the issue. In particular, “the trade associations did not contest Zauderer’s
`applicability before the Eleventh Circuit[.]” 2024 WL 3237685, at *20 (Thomas J.,
`concurring). But Plaintiffs-Appellees do contest Zauderer’s applicability here,
`arguing both that the policy requirement does not regulate commercial speech and
`that it demands much more than an uncontroversial, factual disclosure. Appellees’
`Br. 42–46. Regardless, unlike New York’s Online Hate Speech Law, the Texas and
`Florida policy-disclosure requirements mandated only that the largest social
`media platforms publish their already existing content-moderation policies.
`Appellees’ Br. 67–68. Defendants improperly try to stretch NetChoice’s silence
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`Case 23-356, Document 149, 07/11/2024, 3629092, Page6 of 14
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`Catherine O’Hagan Wolfe, Clerk of the Court
`U.S. Court of Appeals for the Second Circuit
`July 11, 2024
`Page 6 of 14
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`“profoundly alter[] the platforms’ choices about the views they will, and will not,
`convey.” Id. at *13.
`The Online Hate Speech Law, however, goes further. It requires websites to
`communicate several state-preferred messages. The most obvious message, as the
`district court concluded, is that websites must approach “hateful” speech “at least
`
`as inclusive[ly] as . . . the law itself.” J.A. 345. As the State admitted at oral
`will do with reports of hateful conduct . . . as defined by the statute”)). Additional
`compelled messages include that: (1) state-defined hate speech is properly singled
`out for special procedures; (2) hate speech should be reported to the website’s
`operators, or even law enforcement, because it is dangerous; and (3) because of that
`
`argument, a website using a different definition would risk being in violation of the
`law. Oral Argument at 2:35–2:55, Volokh v. James, No. 23-356 (Feb. 16, 2024
`(conceding that the website policy would need to “encompass what the network
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`danger, websites must respond to complaints regarding state-defined hate speech.
`See Appellees’ Br. 35. Requiring websites to send New York’s preferred messages
`about state-defined hate speech thus commandeers editorial control of the
`websites’ overall distinctive expression in several ways, in contravention of
`NetChoice’s express rejection of state laws that force expressive entities to
`“communicat[e] different values and priorities.” 2024 WL 3237685, at *16.
`Paradoxically, the State acknowledges that a website’s displayed policies
`communicate particularized messages, yet it defends its attempt to inject new or
`different messages into those policies. In its briefing, the State admits websites
`“use their moderation policies to attract users.”4 Appellant’s Reply Br. 15. The
`Supreme Court’s decision in NetChoice confirms the efficacy of that admission. See
`2024 WL 3237685, at *11 (the choice of displaying or not displaying expressive
`
`about Zauderer. But Plaintiffs-Appellees have already shown why Zauderer does
`not apply to the Online Hate Speech Law and NetChoice does nothing to change
`that.
`4 The State argues moderation policies amount to “an advertisement to users”
`that propose a commercial transaction, such that the law’s policy requirement
`should receive relaxed scrutiny as a commercial speech regulation. Appellant’s
`Reply Br. 15. Even assuming content-moderation policies are commercial speech—
`something the district court correctly rejected, see J.A. 347–49—the State must
`provide a substantial state interest in restricting them but fails to offer even a
`legitimate one. See infra Section I.C; see also Appellees’ Br. 67–68 (arguing the State
`has not provided evidence to show its purported interest will be served by the
`Online Hate Speech Law).
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`Case 23-356, Document 149, 07/11/2024, 3629092, Page7 of 14
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`Catherine O’Hagan Wolfe, Clerk of the Court
`U.S. Court of Appeals for the Second Circuit
`July 11, 2024
`Page 7 of 14
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`content in the platforms’ own “distinctive compilations of expression” “results in
`a distinctive expressive product”). The State is thus wrong to cling to its position
`that it poses no First Amendment problem to force websites to change their
`“expressive product,” id., by including a policy for how they “will respond [to] and
`address” user reports of state-defined hate speech even if they have chosen not to
`have or display such a policy. N.Y. Gen. Bus. L. § 394-ccc(3). The government cannot
`interfere with websites’ “wealth of choices about whether—and, if so, how—to
`convey” particular content or viewpoints that reflect the sites’ distinctive
`expressive offerings. Id. at *14.
`NetChoice’s reasoning also invalidates the State’s arguments that the policy
`requirement causes no First Amendment injury because Plaintiffs-Appellees can
`convey “alongside the disclosure whatever additional information or speech that
`they want.” Appellant’s Br. 54–55; see also Appellant’s Reply Br. 6–7. But
`demanding websites display more speech to disclaim compelled content only
`compounds the State’s interference with the websites’ editorial freedom. In other
`words, New York suggests a second (at least) unwanted alteration to the website’s
`expressive policy content on top of the compelled policy. In any event, even if “no
`one will wrongly attribute to them the views” of the State’s required policy, the
`inclusion of a hate speech policy alters websites’ “overall speech environment,”
`
`NetChoice, 2024 WL 3237685, at *15, “overriding a private party’s expressive
`
`choices.” NetChoice, 2024 WL 3237685, at *11. New York’s law “forces [websites] to
`weigh in on the debate about the contours of hate speech when they may otherwise
`choose not to speak.” J.A. 346.5
`
`speech disclosure infringes on . . . editorial discretion.” Appellant’s Reply Br. 31.
`
`
`5 Contrary to the State’s contentions, none of this means that “any compelled
`
`NetChoice says nothing about the kinds of user privacy-related disclosure
`requirements cited by the State, see Appellant’s Br. 38–39, for obvious reasons.
`First, the exact categories of user information collected by websites are cold, hard
`facts. Displaying these facts does not send any message related to or alter the site’s
`“distinctive expressive product.” 2024 WL 3237685, at *11. But forcing a website to
`take a stand related to state-defined hate speech does. Second, laws protecting
`privacy achieve “a ‘substantial state interest” not at issue here,” Appellees’ Br. 42
`(quoting Edenfield v. Fane, 507 U.S. 761, 769 (1993)). Also, New York’s goal is to
`distort the marketplace of ideas, an interest that is “not valid,” under the First
`Amendment. NetChoice, 2024 WL 3237685, at *15; see Appellees’ Br. 21–25 and infra
`Part I.C.
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`

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`Case 23-356, Document 149, 07/11/2024, 3629092, Page8 of 14
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`Catherine O’Hagan Wolfe, Clerk of the Court
`U.S. Court of Appeals for the Second Circuit
`July 11, 2024
`Page 8 of 14
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`Reporting Mechanism
`New York’s reporting mechanism requirement similarly hijacks websites’
`editorial judgment by forcing them to create and prominently display a means for
`reporting “hateful” speech. See Appellant’s Br. 38–39. The mandatory hate-speech
`reporting mechanism has one purpose: “for individual users to report” state-
`defined hate speech to the website. N.Y. Gen. Bus. L. § 394-ccc(2). Like the policy
`provision, it thus requires websites to implicitly send New York’s preferred
`message about hate speech—that it is dangerous and worth reporting to
`authorities. It therefore similarly overrides websites’ choices about “the views they
`will, and will not, convey,” NetChoice, 2024 WL 3237685, at *14, and alters the
`“overall speech environment” each website creates. Id. at *15. In essence, the
`mechanism is the message, sitting uneasily—contradicting, really—NetChoice’s
`underscoring that the choice “to exclude a message” is a website’s decision alone.
`Id. at *11.
`The Online Hate Speech Law exacerbates this by mandating that websites
`give the mechanism prioritized placement by requiring it to be “clear and easily
`accessible,” “clearly accessible to users,” and “easily accessed from” the site. N.Y.
`Gen Bus. L. § 394-ccc(2). This contravenes another of NetChoice’s central holdings
`that deciding to “alter, organize, prioritize, or disclaim” content on a website are all
`protected expressive choices. Id. at *5 (emphasis added). Worse, prioritizing the
`mechanism sends its own implicit message that reporting hate speech is important
`and welcome. Mandating that the mechanism have pride of placement further
`alters websites’ “overall speech environment” and particularly interferes with the
`pro-free speech ethos of Plaintiffs-Appellees. See J.A. 347 (district court’s opinion
`describing New York’s law as putting Plaintiffs-Appellees or other pro-free speech
`websites “in an incongruous position”).
`NetChoice also lays to rest the State’s reliance on Rumsfeld v. Forum for
`Academic and Institutional Rights (“FAIR”), Inc., 547 U.S. 47 (2006), to argue the
`reporting mechanism requirement regulates only conduct. Appellant’s Br. 26, 28–
`29. NetChoice clarifies that FAIR only allows the state to compel an entity to
`provide equal access to third parties when the regulated entity is not “engag[ing] in
`expression.” 2024 WL 3237685, at *11. Requiring law schools to allow military
`recruiters equal access to students “did not interfere with any message” expressed
`by the law school. Id. (cleaned up). By contrast, websites are engaged in “inherently
`expressive,” FAIR, 547 U.S. at 66, activity—like newspapers, newsletters, and
`parades—when they “alter, organize, prioritize, or disclaim” content. Netchoice,
`2024 WL 3237685, at *5.
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`Case 23-356, Document 149, 07/11/2024, 3629092, Page9 of 14
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`Catherine O’Hagan Wolfe, Clerk of the Court
`U.S. Court of Appeals for the Second Circuit
`July 11, 2024
`Page 9 of 14
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`While the State prefers to view its law as a conduct regulation that simply
`requires “mak[ing] available a user tool for reporting,” Appellant’s Reply Br. 5–6,
`this is a euphemism for requiring platforms to create, display, and promote
`particular content that the State demands in violation of the First Amendment.
`Response Requirement
`The Online Hate Speech Law’s mandate for websites to respond to user
`reports of hate speech also erodes their control of their speech environments by
`requiring “a direct response” to each complainant “informing them of how the
`matter is being handled.” N.Y. Gen. Bus. L. § 394-ccc(2); see also N.Y. Gen. Bus. L.
`
`§ 394-ccc(3). See Appellee’s Br. 41–42. As explained further in Plaintiffs-Appellees’
`
`answering brief, this requirement imposes significant compliance costs on sites
`that allow speech defined by New York as hate speech and will now be required to
`spend time responding to complaints. Appellee’s Br. 17. The law, therefore,
`incentivizes proactive banning or removal of state-defined hate speech, allowing
`New York to “accomplish indirectly via market manipulation what it cannot do
`through direct regulation—control the available channels for political discussion,”
`Appellees’ Br. 56 (citing Washington Post v. McManus, 944 F.3d 506, 517 (4th Cir.
`2019)). Imposing these costs to influence websites’ “overall speech environment”
`on expressive platforms like Rumble or Locals, 2024 WL 3237685, at *15–16, cannot
`be squared with the tenets of NetChoice.
`C. NetChoice confirms that New York’s explicit objective of tilting
`the marketplace of ideas is constitutionally illegitimate.
`The Supreme Court’s decision in NetChoice repudiates New York’s central
`goal in enacting its Online Hate Speech Law of reducing “hateful” but protected
`online speech. Appellees’ Br. 62–64. The law’s title, “Social media networks; hateful
`conduct prohibited,” § 394-ccc, evidences the State’s impermissible aim, as the
`district court understood. J.A. 353 (the title “strongly suggests that the law is
`
`targeted at reducing . . . hate speech online”). And the law’s policy, reporting
`websites like those the Plaintiffs-Appellees operate. See Appellees’ Br. 55–58. As
`types of speech they feel free to engage in without facing consequences.” J.A. 353.
`
`mechanism, and response requirements effectuate this aim by disincentivizing
`speech-permissive policies and hindering the messages and editorial choices of
`
`the district court warned, “the state’s targeting and singling out of this type of
`speech for special measures certainly could make social media users wary about the
`
`The Supreme Court expressly rejected Texas’s similar goal of “correct[ing]
`the mix of speech that the major social-media platforms present” by altering
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`Case 23-356, Document 149, 07/11/2024, 3629092, Page10 of 14
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`Catherine O’Hagan Wolfe, Clerk of the Court
`U.S. Court of Appeals for the Second Circuit
`July 11, 2024
`Page 10 of 14
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`private expression, holding the First Amendment forbids “licensing the
`
`government” to “change the speech of private actors . . . to achieve its own
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`conception of speech nirvana.” NetChoice, 2024 WL 3237685, at *15–16. Noting
`“there are few greater” “dangers to free expression,” id. at *16, it held that state
`attempts to “rejigger the expressive realm,” id. at *12, by burdening or promoting
`certain expression is simply “not valid” under the First Amendment. Id. at *15.
`Were there any question that New York’s law is cut from the same cloth, its
`legislative history further shows the State’s intent to distort the marketplace of
`ideas and “tilt[] public debate” in the State’s preferred direction. Id. at *16. In
`concluding that Texas’s purpose in enacting its law was to impermissibly “create a
`better speech balance,” the Supreme Court similarly looked to remarks by the bill’s
`chief sponsor and the governor’s signing statement. NetChoice, 2024 WL 3237685,
`at *15. Here, likewise, as Appellees showed in their briefing, the law’s sponsors
`were not shy that the law’s intended target was “hateful material,” “hateful
`ideology,” and the spread of “dangerous and corrosive ideas.” J.A. 75, 174, 179. For
`instance, the President of the New York Senate emphasized that the law would
`“allow law enforcement to break the echo chamber where malice festers” and to
`“confron[t] the spread of misinformation and hateful ideology on the internet.”
`Appellees’ Br. 1–2, 9. See Appellees’ Br. 9, 42–43, J.A. 176. Governor Hochul’s
`signing statement similarly lauded the statute’s true goal: “[W]e’re now requiring
`social media networks to monitor and report hateful conduct on their platforms.”
`J.A. 13; see also id. (including quotes from Attorney General James).
`The State’s briefing admits this underlying purpose in arguing the law’s
`policy and reporting mechanisms will “make[] it more likely that users who see
`
`hateful conduct . . . will report it” and that “encouraging such user reports” will
`
`lead to “reducing violent and extremist content on social media networks that
`choose to remove such content.” Appellant’s Br. 52–53. Similarly, the State believes
`the policy requirement “may inform a user who is exposed to hateful conduct that
`further action is needed,” Appellants’ Reply Br. 20, “for example, by calling local or
`federal law enforcement.” Def.’s Opp. Mot. Prelim. Inj., Volokh v. James, 22-cv-
`10195, ECF No. 21 at 25. As with Texas and Florida in NetChoice, New York’s
`interest here in “tilt[ing] public debate” is “very much related to the suppression of
`free expression” and thus “not valid” under any level of constitutional scrutiny.
`NetChoice, 2024 WL 3237685, at *15.
`
`Insofar as New York contends its law speaks to “providing . . . accurate
`
`information about networks’ policies,” Appellant’s Reply Br. 18, it fails to support
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`

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`Case 23-356, Document 149, 07/11/2024, 3629092, Page11 of 14
`
`Catherine O’Hagan Wolfe, Clerk of the Court
`U.S. Court of Appeals for the Second Circuit
`July 11, 2024
`Page 11 of 14
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`the validity of that interest,6 which is fatal insofar as a state cannot “sacrific[e]
`important First Amendment interests” for “speculative” gains. Denver Area Educ.
`Telecomms. Consortium, Inc., v. FCC, 518 U.S. 727, 760 (1996) (cleaned up). It is,
`moreover, likely unnecessary to compel the provision of such information, as
`websites already have every incentive to ensure their overall speech environment
`speaks for itself. They likewise are incentivized to provide clear content-
`moderation policies—which provide “a key point of differentiation” between sites,
`as the State recognizes. Appellant’s Reply Br. 15.7
`II.
`The District Court Correctly Held that New York’s Online Hate Speech
`Law Was Likely Invalid Both Facially and As Applied to Plaintiffs.
`While in NetChoice the Supreme Court vacated the circuit decisions and
`remanded for lower courts to reconsider the facial validity of Texas’s and Florida’s
`laws, that is unnecessary here. That holding reflected that those laws include
`numerous provisions and possible applications to “an ever-growing number of
`apps, services, functionalities, and methods for communication,” which the lower
`courts did not address. NetChoice, 2024 WL 3237685, at *9. The Supreme Court thus
`instructed them to first determine “[w]hat activities, by what actors, do the laws
`prohibit or otherwise regulate[.]” Id. at *9. After that, they can determine whether
`
`
`6 The State presented no evidence or legislative testimony demonstrating that
`anyone has been “confused or deceived” related to websites’ hate speech content-
`moderation policies. This stands in contrast to the country-of-origin disclosure law
`upheld in American Meat Institute v. U.S. Department of Agriculture (“AMI”), 760
`F.3d 18, 23 (D.C. Cir. 2014), which the State replied upon. See Reply Br. 19–20. In
`AMI, the D.C. Circuit cited extensive survey data, consumers’ heightened health
`and safety interest in where their food comes from, and the significant “historical
`pedigree” of country-of-origin laws that the government proffered. No such
`evidence is present here, however.
`7 See also Appellees’ Br. 11 (explaining that websites like those of Plaintiffs-
`Appellees attract users seeking a permissive speech environment by having
`relatively few speech policies, while others promote more aggressive moderation
`to attract different users seeking a different environment); Amicus Br. of
`NetChoice and Chamber of Progress, ECF No. 75 at 9 (“Rumble, for example, offers
`
`a competitive differentiation by promising . . . substantially less restrictive content
`
`rules than those offered by NetChoice and CHOP’s members.”).
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`

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`Case 23-356, Document 149, 07/11/2024, 3629092, Page12 of 14
`
`Catherine O’Hagan Wolfe, Clerk of the Court
`U.S. Court of Appeals for the Second Circuit
`July 11, 2024
`Page 12 of 14
`
`“a substantial number of the law’s applications are unconstitutional” compared to
`its plainly legitimate sweep. Id. at *8 (cleaned up).
`Here, the Online Hate Speech Law’s requirements solely infringe on covered
`websites’ editorial judgment and, in that regard, lack a plainly legitimate sweep.
`And even were that not the case, the preliminary injunction is also independently
`justified by the fact that the law discriminates based on vie