Case 1:22-cv-10195-ALC Document 29 Filed 02/14/23 Page 11 of 21
Likewise, Locals’ website identifies a few categories of content that it may remove from its website, including content that “threatens violence against an individual or group of people.” (Id. ¶ 133.) However, this policy also does not encapsulate the classes of groups or persons to whom “hateful conduct” may be directed as is defined by the New York legislature, and it would need to be modified to be brought into compliance with the law by including speech that potentially vilifies or humiliates a group or individual. To be in compliance with the law, Locals would need to publish a policy detailing the types of content its users are entitled to complain about through the new mechanism—i.e., “hateful conduct” as defined by the law—thus compelling Locals to endorse the state’s definition of that term.
Clearly, the law, at a minimum, compels Plaintiffs to speak about “hateful conduct”. As Plaintiffs note, this compulsion is particularly onerous for Plaintiffs, whose websites have dedicated “pro-free speech purpose[s]” (Compl., ECF No. 1 ¶¶ 13, 14), which likely attract users who are “opposed to censorship” (Pl.’s Mem., ECF No. 9 at 24). Requiring Plaintiffs to endorse the state’s definition of “hateful conduct”, forces them to weigh in on the debate about the contours of hate speech when they may otherwise choose not to speak. In other words, the law, “deprives Plaintiffs of their right to communicate freely on matters of public concern” without state coercion. Evergreen, 740 F.3d at 250.
Additionally, Plaintiffs have an editorial right to keep certain information off their websites and to make decisions as to the sort of community they would like to foster on their platforms. It is well-established that a private entity has an ability to make “choices about whether, to what extent, and in what manner it will disseminate speech…” NetChoice, LLC v. Att’y Gen., Fla., 34 F.4th 1196, 1210 (11th Cir. 2022). These choices constitute “editorial judgments” which are protected by the First Amendment. Id. (collecting cases). In Pacific Gas & Electric Co. v. Public
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