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When the Supreme Court of the United States issued its in Moody v. NetChoice and NetChoice v. Paxton a few weeks ago, FIREChief Counsel Robert Corn-Revere called it “a big win for free speech and a free internet.” Indeed, it is.

In NetChoice, the Supreme Court cautioned that laws that hijack platforms’ editorial judgment are unlikely to survive First Amendment scrutiny. The Court considered two challenges to laws in Texas and Florida that forbade social media platforms from moderating and blocking content based on viewpoint. Although the Court sent those cases back to the district courts to make further factual findings, it articulated key First Amendment principles that will guide the proceedings in this case below and those in many other cases. 

In fact, 10 days after NetChoice dropped, FIREattorneys submitted a brief in the United States Court of Appeals for the Second Circuit. The brief argues that NetChoice eviscerates New York’s arguments in defense of its “Online Hate Speech Law” and provides additional support for the preliminary injunction that we previously secured against the law.  

New York’s law would force countless websites to post a policy broadcasting how they will treat “hateful” speech — as defined by New York — and to adopt a complaint mechanism for users to flag “hateful” speech. This would essentially compel websites to adopt the state’s message that speech the state deems “hateful” is bad and should be brought to authorities’ attention. But NetChoice slams the door on government attempts to demand websites adopt, publish, and promote the state’s political messages.

Background on Volokh v. James

In 2022, FIREsuccessfully sued the State of New York on behalf of blogger Eugene Volokh and social media platforms Rumble and Locals. The goal? To stop the state from enforcing its Online Hate Speech law, which aimed to force websites to develop and publish a policy and complaint mechanism, as well as respond to complaints, about speech New York considers hate speech. Integral to these requirements was that websites must adopt New York’s vague definition of what is “hateful.” In New York’s view, that meant any speech that “humiliates” or “vilifies” a group based on race, color, religion, and seven other specific characteristics.  

In early 2023, a federal court halted the law’s enforcement because it impermissibly “compels social media networks to speak about the contours of hate speech and chills the constitutionally protected speech of social media users.” New York appealed the ruling. Though the appeal had been fully briefed and argued, the Second Circuit held off on deciding it until after the parties analyzed ����ٰ��Ǿ�����’s&�Բ�����;effect.

FIRE explains why NetChoice supports the injunction in Volokh v. James 

����鷡’s&�Բ�����;brief demonstrates that the NetChoice decision supports the district court’s injunction and forecloses ruling in favor of New York in three ways. 

First, NetChoice reaffirms the core teaching of decades of Supreme Court decisions holding that the government cannot dictate what anyone — whether an individual or expressive entity — must say. The government, therefore, cannot interfere with “platforms’ choices about the views they will, and will not, convey.”  

Second, NetChoice clarifies that there is no social media exception to the First Amendment. While Texas and Florida argued that states should be permitted to regulate social media platforms because they are not traditional publishers, NetChoice clarifies that the First Amendment protects websites’ editorial processes from regulation just as it does for traditional publishers like newspapers. 

After the Second Circuit considers the Supreme Court’s decision in NetChoice, FIREis optimistic that it will affirm the blocking of New York’s law, preserving a free internet. We eagerly await its opinion.

Third, NetChoice declares that states cannot restrict or compel speech to “tilt public debate” in the state’s preferred direction. In other words, the state cannot limit the free speech rights of social media platforms, including their right to editorial independence, in order “to achieve its own conception of speech nirvana.” 

New York’s Online Hate Speech Law violates all three principles. The statute’s required policy and complaint mechanism for “hateful” speech takes away websites’ right to decide what they say about hate speech, how they define hate speech, or even whether to say anything at all about hate speech. It also turns websites into mouthpieces for the state. In this case, the state’s preferred message about “hateful” speech is clear: It is properly singled out for special procedures, it should be reported to website operators or even law enforcement because it is dangerous, and, because of that danger, websites must respond to complaints regarding state-defined hate speech. 

Volokh v. James: Big Brother in the Big Apple: New York Law Turns Bloggers into Speech Police

Case Detail

New York enacted a law with the goal of regulating disfavored — but constitutionally protected — online speech, threatening vast swaths of protected speech on the internet.

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New York explicitly justified its law as necessary to tilt the marketplace of ideas away from disfavored, but protected, speech. Indeed, New York Gov. Kathy Hochul said the law would require websites to “monitor and report” hate speech on their sites, with the obvious aim of restricting this kind of speech online. New York’s senate president emphasized the law would “confron[t] the spread of misinformation and hateful ideology on the internet.” The attorney general and the law’s chief sponsors made similar remarks when the law was passed. Under NetChoice, however, the state’s goal of stamping out “hateful” speech online does not justify restricting speech in any way, and it should doom the law’s chances of survival under the First Amendment.

The Online Hate Speech Law forces websites to serve as the state’s mouthpiece and stifles robust discussion on the internet about important political and cultural topics. Permitting this law to take effect would encourage New York and other states to demand websites engage in the systemic chilling of various protected viewpoints — including speech for or against religion, Black Lives Matter, trans rights, or any other topic. That cannot stand. 

After the Second Circuit considers the Supreme Court’s decision in NetChoice, FIREis optimistic that it will affirm the blocking of New York’s law, preserving a free internet. We eagerly await its opinion.