Three Questions

The United States Court of Appeals for the Second Circuit has certified three questions to the New York Court of Appeals in litigation brought challenging a law (the “Hateful Conduct Law”) enacted in the wake of the horrific 2022 Buffalo shooting.

The crime

On May 14, 2022, an 18-year-old white man drove to a supermarket in Buffalo with the stated intention of “killing as many blacks as possible.” J. App’x at 80.2 With tragic success, the Buffalo shooter entered the supermarket, shot and killed ten innocent Black people, and injured several others.

The investigation that followed the Buffalo shooting revealed that social media played a key role in the shooter’s attack. First, investigators explained that “internet memes have been an effective means to mainstream white supremacist extremism and introduce it to new audiences” like the shooter because “memes can soften extremist ideas and make them more palatable to outsiders, while simultaneously creating an in-group—a community that understands the sometimes deeply encoded in-jokes.” Id. at 94. Because the Buffalo shooter wrote a manifesto “peppered . . . with memes, in-jokes, and slang common on extremist websites and message boards,” investigators concluded the shooter found inspiration from the internet for his attack. Id. Investigators also determined the shooter found advice on online platforms about how to carry out his plans, including on how to obtain the weaponry needed for his attack. See id.

Second, the shooter broadcast a live video stream of his attack on the online video platform Twitch, which he then publicized using Discord, a different online platform. The video livestream lasted twenty-four minutes in total, the first twenty-two of which consisted of the shooter driving to the supermarket where his crimes took place. The last two minutes of the livestream showed the beginning of the shooter’s attack.

Twitch shut down the shooter’s livestream two minutes after the violence began, after at least one user reported the shooting to Twitch. Between twenty and twenty-eight Twitch users viewed at least a portion of the livestream. However, graphic videos and images taken while the shooter’s livestream was still publicly available “proliferated” on a fringe social media site in the days following the shooting, even though Twitch had terminated the livestream within two minutes after the violence began. Id. at 74. 

The law

In response to the Buffalo shooting, the New York State legislature enacted the Hateful Conduct Law, effective December 3, 2022. N.Y. Gen. Bus. Law § 394ccc. The Hateful Conduct Law contains two key substantive requirements: the “Policy Disclosure Requirement” and the “Report Mechanism Requirement.”

The plaintiffs

Plaintiffs are Eugene Volokh, Locals Technology Inc. (“Locals”), and Rumble Canada, Inc. (“Rumble”). Volokh is a law professor and the operator of The Volokh Conspiracy, a legal blog “dedicated to maintaining a free and open marketplace of ideas.” J. App’x at 9. Posts and open forums on The Volokh Conspiracy often receive dozens or sometimes hundreds of comments from readers. Commenters can respond to one another, and any member of the public can see Volokh Conspiracy comments.  Volokh reports that some commenters have posted “controversial views on topics concerning one or more of the protected categories identified in” § 394-ccc(1)(a). Id. at 28. He also maintains full editorial control over The Volokh Conspiracy and contends that developing and maintaining the policies required by the New York Hateful Conduct Law would be time consuming, burdensome, and “contrary to The Volokh Conspiracy’s ethos, purpose, and mission.” Id. at 27.

Plaintiff Rumble is an online service that allows users to upload and share video content (similar to YouTube, as Rumble says in the Complaint). See id. at 11. Users can comment on videos and reply to other comments, and all videos, comments, and replies are visible to the public. Rumble has “a mission to protect a free and open internet,” id. at 28–29, and considers its platform “immune to cancel culture,” id. at 28. Rumble maintains terms and conditions for its users; those terms prohibit content that is “grossly offensive to the online community, including but not limited to racism, anti-semitism and hatred.” Id. at 30. It likewise prohibits content that “supports or incites violence or unlawful acts” or that “supports groups that support or incite violence or unlawful acts.” Id. But the Complaint indicates that Rumble “does not prohibit content because it may ‘vilify’ or ‘humiliate’” others. Id. Rumble maintains an email address to receive complaints; though it “attempts to respond” to complaints, Rumble disclaims any responsibility to inform complainants about responsive actions it may have taken in response. Id. at 31 (alteration accepted).

Plaintiff Locals is a wholly owned subsidiary of Rumble and an online service that allows users to upload and share content with paid or unpaid subscribers. Subscribers can comment on content and reply to other comments. Locals describes itself as “pro-free speech” and “committed to fostering a community that is safe, respectful, and dedicated to the free exchange of ideas.” Id. at 12. The site’s community guidelines prohibit “content that threatens violence against an individual or group of people” but otherwise allows its users to “independently police content.” Id. at 34. Locals maintains an email address to receive complaints but says “there is no requirement that complaints will receive a response from Locals.” Id.

The district court entered a preliminary injunction prohibiting enforcement 

In February 2023, following briefing and oral argument, the district court entered a preliminary injunction broadly prohibiting enforcement of § 394-ccc. Volokh v. James, 656 F. Supp. 3d 431, 447 (S.D.N.Y. 2023). The district court concluded that the Plaintiffs showed a substantial likelihood of success on their as-applied First Amendment challenges. Id. at 444. In particular, the district court reasoned that strict scrutiny applies because the Hateful Conduct Law compels the social media networks to engage in speech that is “inextricably intertwined” with protected speech that’s different in character from the “purely factual and uncontroversial information” subject to more relaxed review. Id. at 443. Because the regulation is not narrowly tailored to serve a compelling governmental interest, the district court concluded it likely does not survive strict scrutiny. See id. at 443–44.

The certified questions

We thus CERTIFY the following questions to the New York Court of Appeals pursuant to our Local Rule 27.2 and 22 N.Y.C.R.R. § 500.27(a):

(1) Does a social media network comply with N.Y. Gen. Bus. Law § 394-ccc(3)’s requirement to publish a “clear and concise policy . . . which includes how such social media network will respond and address the reports of incidents of hateful conduct on their platform” if its policy does not explicitly reference or address the content encompassed by the statute’s definition of “hateful conduct” and does not otherwise address content that encompasses this defined category?

(2) Does a social media network comply with N.Y. Gen. Bus. Law § 394-ccc(2)’s requirement to “provide and maintain a . . . mechanism for individual users to report incidents of hateful conduct” if that mechanism does not explicitly reference or address the content encompassed by the statute’s definition of “hateful conduct” and does not specifically state that content meeting the statute’s definition of “hateful conduct” may be reported using that mechanism?

(3) Does N.Y. Gen. Bus. Law § 394-ccc require a social media network to provide a direct response to any individual reporting hateful conduct informing them of how the matter is being handled?

By so formulating the questions, we do not intend to limit the scope of the Court of Appeals’ analysis, and we invite the Court of Appeals to reformulate or expand upon these questions as it deems appropriate. This panel retains its jurisdiction to decide this appeal once we have had the benefit of the New York Court of Appeals’ views, or it declines to accept certification.

DENNIS JACOBS, Circuit Judge, dissenting:

I respectfully dissent. To whack the moles of hate, the State of New York proposes to put regulation of internet content in the hands of the state’s elected Attorney General. The district court has temporarily enjoined this “Hateful Conduct Law,” and the panel today unanimously confirms that the First Amendment forbids such a measure. However, rather than affirm the district court’s preliminary injunction, the majority certifies questions to the New York Court of Appeals, asking whether the statute might be creatively read to reduce the infringement on speech. It cannot. I dissent from the certification of questions because no answer that the Court of Appeals could give to the questions posed would advance the inquiry. I would instead affirm; Judge Carter got it right.

(Mike Frisch)