Federal Court Enjoins New York’s “Hateful Conduct Law” as Unconstitutional

There is a major victory for free speech in the United States District Court for the Southern District of New York where Judge Andrew Carter Jr. has enjoined a New York Hate Speech law regulating social media. In Volokh v. James, Judge Carter granted a preliminary injunction on the basis that “the Hateful Conduct Law” is blatantly unconstitutional, which it most certainly is. It is only the latest law passed by the New York legislature that was quickly enjoined by the federal courts. Albany has become a type of perpetual motion machine of unconstitutional excesses.

Like many attacks on free speech, the New York law came in response to a tragedy. On May 14, 2022, an avowed white supremacist killed ten people and wounded three others in Buffalo, New York. He used Twitch to livestream his attack on the Black shoppers.

Governor Kathy Hochul immediately used the massacre to renew attacks on social media companies and to demand new regulations of speech. She directed the Office of the Attorney General (“OAG”) to investigate “the specific online platforms that were used to broadcast and amplify the acts and intentions of the mass shooting” and  to “investigate various online platforms for ‘civil or criminal liability for their role in promoting, facilitating, or providing a platform to plan or promote violence.”

She also went public with a declaration that “[o]nline platforms should be held accountable for allowing hateful and dangerous content to spread on their platforms” because the alleged “lack of oversight, transparency, and accountability of these platforms allows hateful and extremist views to proliferate online.”

The result of Hochul’s call was The Hateful Conduct Law, entitled “Social media networks; hateful conduct prohibited” that went into effect on December 3, 2022. The law defines  “hateful conduct” as

“[T]he use of a social media network to vilify, humiliate, or incite violence against a group or a class of persons on the basis of race, color, religion, ethnicity, national origin, disability, sex, sexual orientation, gender identity or gender expression.”

N.Y. Gen. Bus. Law § 394-ccc(1)(a). The underlying “conduct” of vilification, humiliation, or incitement is left undefined, but it falls within the scope of the law if it is directed toward an individual or group based on their “race”, “color”, “religion”, “ethnicity”, “national origin”, “disability”, “sex”, “sexual” orientation”, “gender identity” or “gender expression.”

Thus, the law requires all social media companies to have (1) a mechanism for social media users to file complaints about instances of “hateful conduct” and (2) to publish the social media network’s policy for how it will respond to any such complaints.

The court found that there is “clear or substantial likelihood of success on the merits” given the abridgment of First Amendment rights.  Notably, after passing this law to great fanfare and acclaim, the court noted that the state “concedes that the Hateful Conduct Law may not be able to withstand strict scrutiny.” Indeed, it cannot. Yet, that did not stop Hochul and the legislature from passing a blatantly unconstitutional law.

Judge Carter writes:

“Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.'” Matal v. Tam (2017).

The Hateful Conduct Law does not merely require that a social media network provide its users with a mechanism to complain about instances of “hateful conduct”. The law also requires that a social media network must make a “policy” available on its website which details how the network will respond to a complaint of hateful content. In other words, the law requires that social media networks devise and implement a written policy—i.e., speech.

…[T]he Hateful Conduct Law requires a social media network to endorse the state’s message about “hateful conduct”. To be in compliance with the law’s requirements, a social media network must make a “concise policy readily available and accessible on their website and application” detailing how the network will “respond and address the reports of incidents of hateful conduct on their platform.” N.Y. Gen. Bus. Law § 394-ccc(3). Implicit in this language is that each social media network’s definition of “hateful conduct” must be at least as inclusive as the definition set forth in the law itself. In other words, the social media network’s policy must define “hateful conduct” as conduct which tends to “vilify, humiliate, or incite violence” “on the basis of race, color, religion, ethnicity, national origin, disability, sex, sexual orientation, gender identity or gender expression.” N.Y. Gen. Bus. Law § 394-ccc(1)(a). A social media network that devises its own definition of “hateful conduct” would risk being in violation of the law and thus subject to its enforcement provision.

The Court does reject the claims of the plaintiffs that the law is preempted by Section 230 of the Communications Decency Act. However, it is a moot point given the unconstitutionality of the law.

What is most troubling about this law is not that the state has again sought to violate the constitutional rights of citizens or companies. It is that it will not matter to voters. Hochul and state legislators knew that there will be no political costs for passing laws that violate the First Amendment. Today, free speech is often portrayed as harmful and even a threat to democracy.

Indeed, anti-free speech sites like Above the Law previously mocked the lawsuit and suggested that the plaintiffs were made to look like fools in court. Volokh and others were denounced as fighting for hate speech while others like “Trans folks . . . have been suffering the joys of ‘free speech.'” The site described arguments made before Carter as simply embarrassing and told readers that “[t]he best thing about this is that those in opposition of the law are clearly grabbing at straws.” It appears that, despite what Above the Law viewed as silly arguments in court, those plaintiffs and their lawyers just secured a sweeping First Amendment victory.

One would hope that citizens would be outraged when their leaders seek to limit their constitutional rights. The opposite will be true. This stinging loss will be met with the appreciation of many in the public for having tried to limit free speech in the name of fighting hate.

Congratulations to Professor Eugene Volokh, Rumble, and their counsel (including Foundation for Individual Rights and Expression attorney Daniel Ortner) for securing this important victory.

Here is the opinion: Volokh v. James

153 thoughts on “Federal Court Enjoins New York’s “Hateful Conduct Law” as Unconstitutional”

  1. These actions by the criminal Democrats are merely a way of tying up opponent’s resources. They don’t care if they pass unconstitutional laws as there are NO consequences. Look at the Biden regime, they do the same thing and on a worst scale. Time for a law that has teeth where there is jail time for legislators/civil servants who come up with these illegal laws.

  2. I think they did this….because they thought they had immunitty. Because it’s only about speech they can be challenged…for over broad and vague. Every other constitutional right has to wait for a defendant rotting in jail! To defend! If not killed in jail….like Diane layne…like mr Stewart ..like mr Jordan ….like so many killed in elmore jail. Awaiting their first hearing. It is so sad elmore county can kill so many people and no one cross rights opporttunity! What a travesty but who sold at all are absent because they were white. Th eji the aclu and the splc d sold….because their racists not human beings!.

  3. (OT) This is a dark day for Democrats. The Justice Department (yes, Garland’s Department) has decided to not prosecute Matt Gaetz for child traffiking. https://www. usatoday.com/story/news/politics/2023/02/15/matt-gaetz-justice-department-investigation/11264211002/ Another one gets away!

    1. Lots of political persecution, is never intended to go to trial. The process is the punishment
      Speaker Tom Delay
      Sen Ted Stevens
      Senator Kay Baily Hutchinson

      Go to a Side Bar

      The govt prosecution of Accounting firm Arthur Anderson Accounting
      Andrew Weissmann’s persecution was impressive….Except for the part about being overturned 9-0 by the US Supreme Court, for wholly corrupt prosecution

    2. From all I have read on this the lack of charges is due to lack of evidence. Gaetz is a favorite target of some and it sure seems like if there was any conclusive or even substantial circumstantial evidence available, Gaetz would be indicted. While you clearly despise Gaetz (I am ambivalent), a kangaroo court trial is something you should never support. Nor should you assume, only because of political differences, that anyone is guilty of a charge ‘anyway’. Our court system has its faults but the burden of proof is on the prosecution- not the defendant. And wishing bad things on an ideological opponent is not reasonable nor a strategy. It’s pointless malevolence.

  4. This ruling is the fruit of all the campaign contributions and work done for the likes of both Bushes, and other Republicans who were and are far less than perfect. But appointing judges is and should continue to be the primary goal of liberty loving people. This could have gone the other way

    1. Are you implying that the Clintons, Obamas and Biden, along with other democrats, are NOT “less than perfect”?

  5. Every legislator who votes for, or President who signs, any legislation which is deemed to violate our rights should immediately be brought up in special court on charges of conspiracy to violate the rights of the American people.

    1. Johnathan Galt,
      First, great handle name.
      Second, the Democrats have made it clear, if they could, they would toss the Constitution, write a new one that kept them in power, forever.

    2. Any politician that does not believe in our Constitution, should be thrown out of government, period!!
      Right now, that would pretty much clean out government, so we can start fresh!!

  6. There has to be consequences for voting in favor of legislation that is ruled unconstitutional beyond the possibility of losing elections. While we can’t force voters to be civically-literate, and/or take an oath, we can and should hold lawmakers liable for violating their oath of office. Vote in favor of a law ruled unconstitutional? Lose 10% of your voting power for each occurrence.

    1. “It’s the [Supreme Court], stupid!”

      – James Carville

      However politically impossible, the remedy for unconstitutional acts by the executive and judicial branches is Judicial Review.

      The remedy for dereliction of duty by the Supreme Court is impeachment and conviction.

      The remedy for the essential failure of the Constitution is patriotic American statesmen who cross lines and impeach for the benefit of the Constitution.

      The deleterious cancer is the sinful covetousness, bearing of false witness, and stealing by welfare state dependents and parasites who reject freedom through self-reliance.

      The remedy for catastrophic governmental failure is “…to throw off such Government, and to provide new Guards for their future security.”

      “Judicial Review in the United States”

      The legitimacy of judicial review and the judge’s approach to judicial review are discussed.

      The doctrine of judicial review holds that the courts are vested with the authority to determine the legitimacy of the acts of the executive and the legislative branches of government.

      – U.S. Department of Justice, Office of Justice Programs

      “But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”

      Declaration of Independence, 1776

      1. Judicial review? Damn George, was there some other entity you thought i was referring to that would rule a law unconstitutional?

        1. I actually have no idea what you were referring to – a surreal adventure into the ethereal realms of punitive vote depletion, perhaps?

          Does “…there has to be consequences for…” allowing one man, one vote democracy in a severely restricted-vote republic?

          You appeared to suggest that you were familiar with some point in history when that which is unconstitutional had actually been struck down.

          I can recall the history of Chief Justice Roger B. Taney who made public the fact that Lincoln was a constitutionally delirious high criminal; that’s about it.

          An act of Judicial Review to strike down Lincoln’s unconstitutional denial of secession would have completely stopped “Crazy Abe,” his successors, their deleterious “RECONSTRUCTION” amendments, their failure to enforce extant immigration law, their failure to compassionately repatriate illegal aliens, and every other anti-American, unconstitutional effort they engaged in.

          Alas, that didn’t happen, the vote and nation were put up for bid by dependents and parasites, and a foreign, 3-million-man, standing army was permanently stationed on U.S. soil.

          What, exactly, do you “refer” to?

          1. I actually have no idea what you were referring to – What, exactly, do you “refer” to?

            Well you didn’t bury the lede. And you concluded fine. But the rest of it…bat-sh!t crazy filler.

              1. Estovir, I’ve been doing fairly well ignoring those that shall remain nameless. I had a moment of weakness and for that one transgression, I will pray for forgiveness.

              2. I like Lincoln and don’t mind correcting George’s mistakes. Is there something wrong with correcting the record and providing full quotes of Lincoln while explaining what they mean? Is it harmful to quote Madison?

                What is your problem, Estovir? Was the wind taken out of your sails?

            1. One thing is for sure; the state of constitutional America is not “bat—- crazy,” right?

              OK, Olly, we’ll go with, “Lose 10% of your voting power for each occurrence.”

              That’ll fix ’em.

              That’ll put America right back on the Constitution.

              There does has to be consequences.

              I had no idea you were so Einsteinian.


    “In Volokh v. James, Judge Carter granted a preliminary injunction on the basis that “the Hateful Conduct Law” is blatantly unconstitutional, which it most certainly is.”

    – Professor Turley

    Congratulations, Professor Turley!!!

    Res ipsa loquitur!!!

    “…it most certainly is.”

    The entire communistic American welfare state is “MOST CERTAINLY” unconstitutional including, but not limited to, matriculation affirmative action, grade-inflation affirmative action, employment affirmative action, quotas, welfare, food stamps, minimum wage, rent control, social services, forced busing, public housing, utility subsidies, WIC, SNAP, TANF, HAMP, HARP, TARP, HHS, HUD, EPA, Agriculture, Commerce, Education, Labor, Energy, Obamacare, Social Security, Social Security Disability, Social Security Supplemental Income, Medicare, Medicaid, “Fair Housing” laws, “Non-Discrimination” laws, etc.

    Article 1, Section 8, provides Congress the power to tax for ONLY debt, defense and “…general Welfare…”, aka infrastructure, deliberately omitting and, thereby, deliberately excluding any power to tax for individual welfare, specific welfare, particular welfare, favor or charity. The same article enumerates and provides Congress the power to regulate ONLY the value of money, the “flow” of interstate commerce, and land and naval Forces. Additionally, the 5th Amendment right to private property is not qualified by the Constitution and is, therefore, absolute, allowing Congress no power to claim or exercise dominion over private property, the sole exception being the power to fully “take” private property for public use. If the right to private property is not absolute, there is no private property, and all property is public.

    Government exists, under the Constitution and Bill of Rights, to provide maximal freedom to individuals while government is severely limited and restricted to merely facilitating that maximal freedom of individuals through the provision of only security and infrastructure.

    It is the land of the FREE, not the land of the imprisoned SERVANTS of communism.

  8. Hochul will do down in the history books as a bad Governor of New York State. What she has been doing gives females running for high political positions a harder time than they already have.

  9. My thought is always look at the people proposing, look at the people in charge. That stuff like this isn’t laughed out of existence in its infancy tells me mostly what I need to know, generally. What will we do if NYC or similar fails? Even though we are so tribalist in this cold civil war, we are nevertheless interconnected. This is obviously something young idiots with imaginary chips on their shoulders do not take into consideration, and it’s ironic considering they all seem to be hyper-focused on the interrelatedness of ecosystems that do not involve human beings directly. This is and isn’t the stuff of law, folks (though it is): it is the stuff of being unable to accept being a human being on planet earth with other human beings that you may very well at times not like too much but have just a as much of a right to life as you. Younger generations have dragged us backward by decades, and we will have to address that somehow before we move forward again. I keep reading this stuff on this blog, and all I ever see behind the curtain is idiot children intent on destroying us through their own ignorance.

    1. James,
      While the younger generations are part of the wokeism cult, seems to me there are a fair number of those older who are in the same cult, ref: Professor Turley’s article on Gates and AI and all those who are calling for censorship.
      The idiot children behind the curtain, some of them appear to be Boomers.
      The Loudoun school board elected 3 to 6 to NOT release the rape investigation of their actions. Those are supposed to be the adults in the room. No accountability.

      Gates suggested a hung election and civil war. How does that math work out?
      Trump has suggested running as an independent if he does not take the GOP nomination. So, Biden (D), Trump (I), and DeSantis/Haley/Youngkin/whomever (G)?
      Or Biden gets us seriously into WWIII with US troops on the ground and declares a national emergency and suspends the election?
      Or Trumps wins over Biden and the DOJ, FBI, declares Trump to be a national security threat and tosses out the election results and says Biden won?
      Regardless, the outcome is not pretty.
      Disclaimer 1) I do not want Trump to be the GOP nominee, or even run as a Independent. I would like to see both him and Biden go quietly away.
      Disclaimer 2) As I have stated on this blog before, we must do everything to avoid Civil War 2.0.
      However, I would not put it pass the Leftists to do something to incite one.

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