Case 1:22-cv-10195-ALC Document 29 Filed 02/14/23 Page 13 of 21
mercury content in their products, Nat’l Elec. Mfrs. Ass’n v. Sorrell, 272 F.3d 104, 116 (2d Cir. 2001).
In general, laws regulating commercial speech are subject to a lesser standard of scrutiny. N.Y. State Rest. Ass’n v. New York City Bd. of Health, No. 08-CV-1000(RJH), 2008 WL 1752455, at *6 (S.D.N.Y. Apr. 16, 2008), aff’d, 556 F.3d 114 (2d Cir. 2009) (citing Nat’l Elec. Mfrs. Ass’n v. Sorrell, 272 F.3d 104, 113 (2d Cir. 2001)). The Supreme Court has articulated two definitions of what constitutes commercial speech. First, speech is considered to be commercial when it “‘does no more than propose a commercial transaction.’” Conn. Bar Ass’n v. United States, 620 F.3d 81, 93 (2d Cir. 2010) (quoting Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 66 (1983)). Second, “commercial speech [constitutes] ‘expression related solely to the economic interests of the speaker and its audience.’” Conn. Bar Ass’n, 620 F.3d at 94 (quoting Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York, 447 U.S. 557, 561 (1980)). Commercial speech is generally subject to intermediate scrutiny, Safelite Grp., Inc. v. Jepsen, 764 F.3d 258, 261 (2d Cir. 2014); however, where the commercial speech conveys “purely factual and uncontroversial” information, courts apply rational basis review. New York State Rest. Ass’n v. New York City Bd. of Health, 556 F.3d 114, 132 (2d Cir. 2009) (citing Nat’l Elec. Mfrs. Ass’n, 272 F.3d at 114–15).
The policy disclosure at issue here does not constitute commercial speech and conveys more than a “purely factual and uncontroversial” message. The law’s requirement that Plaintiffs publish their policies explaining how they intend to respond to hateful content on their websites does not simply “propose a commercial transaction”. Nor is the policy requirement “related solely to the economic interests of the speaker and its audience.” Rather, the policy requirement compels a social media network to speak about the range of protected speech it will allow its users to engage (or not engage) in. Plaintiffs operate websites that are directly engaged in the proliferation of
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