New York Online Hate Speech Law Clears First Amendment Hurdle

A New York law requiring social media companies to deter hate speech on their platforms likely doesn’t violate the First Amendment because companies aren’t required to adhere to the state’s definition of “hateful conduct,” the state’s high court concluded Tuesday.

The Court of Appeals’ ruling will affect how the US Court of Appeals for the Second Circuit proceeds with a federal lawsuit brought against the state by legal blogger Eugene Volokh and Peter Thiel-backed video site Rumble Inc. They alleged the law unconstitutionally regulates social media company speech by requiring them to establish policies and procedures that adhere to the state’s definition. The state, however, argued the law doesn’t require companies to adhere to or even reference the state’s definition of hateful conduct.

Rather than compelling networks to specifically address hateful content, the statute provides that a company’s disclosure must include only how it will respond to reports of hateful conduct on its platform, Judge Anthony Cannataro said. That requirement “can be met without explicit reference to the statutory definition of ‘hateful conduct,’” as long as the network’s explanation is broad enough to encompass content falling within the law’s definition, Cannataro said.

If companies can comply with the law without fully adopting the state’s definition of hateful conduct, then the statute ultimately survives constitutional scrutiny, the Second Circuit said in its order certifying the questions to the state court.

The law, which was enjoined by a federal district court judge more than two years ago for potentially infringing on free speech, was enacted in December 2022 after Payton Gendron shot and killed 10 people and injured several others at a Buffalo supermarket located in a predominantly Black neighborhood. He livestreamed the attack, but the stream was disrupted after a user flagged the video.

The law defines “hateful conduct” as content that’s used to humiliate or incite violence against a group based on race, religion, ethnicity, national origin, disability, gender identity, or sexual orientation.

The plain language of the statute doesn’t require networks to explain or publicize its reporting mechanisms with reference to the law’s definition of hateful conduct. It only states that the mechanism itself be clear and accessible to users, and doesn’t require it be provided solely for users to report hateful conduct, Cannataro said.

The law also doesn’t require social media companies to adopt any specific policies on responding to reports of hateful content, Cannataro said.

Taken together, the law’s requirements “facilitate users’ speech by giving them a channel to express complaints, and compel transparency by networks rather than endorsement,” the court said.

Judge Michael J. Garcia, in a partial dissent, said the majority can’t excise the definition of “hateful conduct” from the plain text of the statute. The “uncertainty created by the majority’s distortion of the statute increases the risk of arbitrary and abusive enforcement,” he said.

Chief Judge Rowan D. Wilson and Judges Jenny Rivera and Shirley Troutman joined the majority. Judges Madeline Singas and Caitlin J. Halligan joined Garcia’s dissent.

Foundation for Individual Rights and Expression and Lipsitz Green Scime Cambria LLP represent Volokh and Rumble.

The case is Volokh v. James, N.Y., No. CTQ-2025-00006, opinion 6/23/26.