N.Y. AG Urges Reversal of Injunction Against State's Hateful Conduct Law

Three online platform plaintiffs aren’t likely to succeed on the merits of their claim that the requirements in Section 394-ccc, New York’s hateful conduct law, infringe on their First Amendment rights, and the district court’s preliminary injunction blocking New York Attorney General Letitia James (D) from enforcing the statute should be reversed, said James’ office in an Oct. 10 reply brief (docket 23-356) in the 2nd U.S. Circuit Court of Appeals. Multiple amicus briefs days earlier urged the 2nd Circuit to affirm the injunction (see 2309260001).

Section 394-ccc requires social media networks to give users a mechanism for reporting hateful conduct on the network, said the reply brief. To better inform users who wish to make use of a network’s report mechanism, the law also requires networks to disclose a policy explaining how the network will respond to user reports, it said.

The district court’s failure, “at the outset,” to separately consider the statute’s primary provision, its report-mechanism requirement, “demands reversal,” said the reply brief. The plaintiffs lack standing to challenge this requirement because, as plaintiffs don’t dispute, “they each already have a mechanism for accepting user complaints,” it said.

The plaintiffs’ argument that they can’t be sure their existing mechanisms satisfy the statute “is refuted by the plain text of the requirement and by plaintiffs’ own previous statements,” said the brief. Even if the plaintiffs had standing, the requirement doesn’t implicate the First Amendment “because it regulates conduct, not speech,” it said.

The plaintiffs’ challenge to Section 394-ccc’s policy-disclosure requirement “also fails,” said the brief. That requirement mandates disclosure of factual, uncontroversial information -- the network’s own policy -- “which is compelled commercial speech subject to relaxed scrutiny,” it said. The plaintiffs’ contrary arguments “ignore well-established law,” including recent decisions in the 5th and 11th circuits, defining commercial speech to include information about the terms under which a service provider’s services will be available, it said.

The 2nd Circuit also should reject the plaintiffs’ “sweeping alternative arguments” that Section 394-ccc “is impermissibly content-based and viewpoint discriminatory and that it infringes on networks’ editorial discretion,” said the brief. Content-based commercial speech regulations “do not trigger strict scrutiny,” it said.

Section 394-ccc is “viewpoint-neutral” because it applies identically to all networks” subject to the statute, “regardless of whether networks have a policy of removing or not removing hateful conduct,” said the brief. The statute also doesn’t infringe on networks’ editorial discretion because it doesn’t require networks to publish or remove any content, it said.