Case 1:22-cv-10195-ALC Document 29 Filed 02/14/23 Page 12 of 21
Utilities Commission of California, the Supreme Court struck down a regulation that would have forced a utility company to include information about a third party in its billing envelopes because the regulation “require[d] appellant to use its property as a vehicle for spreading a message with which it disagrees.” 475 U.S. 1, 17 (1986).
Here, the Hateful Conduct Law requires social media networks to disseminate a message about the definition of “hateful conduct” or hate speech—a fraught and heavily debated topic today. Even though the Hateful Conduct Law ostensibly does not dictate what a social media website’s response to a complaint must be and does not even require that the networks respond to any complaints or take down offensive material, the dissemination of a policy about “hateful conduct” forces Plaintiffs to publish a message with which they disagree. Thus, the Hateful Conduct Law places Plaintiffs in the incongruous position of stating that they promote an explicit “pro-free speech” ethos, but also requires them to enact a policy allowing users to complain about “hateful conduct” as defined by the state.
- iii.Whether the Hateful Conduct Law Compels Commercial Speech
In the alternative, Defendant argues that even if the law is found to regulate speech, it only regulates commercial speech and should thus be subject to a lesser standard of review. (Def.’s Opp’n, ECF No. 21 at 9, 12–13.) Defendant characterizes the law’s requirement that social media networks publish a policy as “a truthful disclosure of fact” that is only subject to rational basis review. (Tr., ECF No. 27 at 44:7–8.) Defendant likens the Hateful Conduct Law’s policy requirement to other regulations upheld by the Second Circuit requiring (1) chain restaurants to post calorie content information for their menu items, New York State Rest. Ass’n v. New York City Bd. of Health, 556 F.3d 114, 137 (2d Cir. 2009), and (2) lightbulb manufacturers to disclose the
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