Case 1:22-cv-10195-ALC Document 29 Filed 02/14/23 Page 14 of 21
speech—Volokh operates a legal blog, whereas Rumble and Locals operate platforms where users post video content and comment on other users’ videos.
The “lodestars in deciding what level of scrutiny to apply to a compelled statement must be the nature of the speech taken as a whole and the effect of the compelled statement thereon.” Riley v. Nat’l Fed’n of the Blind of N. Carolina, Inc., 487 U.S. 781, 796 (1988). Where speech is “inextricably intertwined with otherwise fully protected speech”, it does not retain any of its potential commercial character. Id. Here, the law clearly implicates protected speech—namely hate speech—by requiring a disclosure of the Plaintiffs’ policy for responding to complaints of hateful content. This is different in character and kind from commercial speech and amounts to more than mere disclosure of factual information, such as caloric information or mercury content, as Defendant tries to equate.
- iv. Whether the Hateful Conduct Law Survives Strict Scrutiny
Because the Hateful Conduct Law regulates speech based on its content, the appropriate level of review is strict scrutiny. See Evergreen, 740 F.3d at 244. To satisfy strict scrutiny, a law must be “narrowly tailored to serve a compelling governmental interest.” Amidon v. Student Ass’n of State Univ. of New York at Albany, 508 F.3d 94, 96 (2d Cir. 2007). A statute is not narrowly tailored if “a less restrictive alternative would serve the Government’s purpose.” United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 813, (2000).
Plaintiffs argue that limiting the free expression of protected speech is not a compelling state interest and that the law is not narrowly tailored. While Defendant concedes that the Hateful Conduct Law may not be able to withstand strict scrutiny, she maintains that the state has a compelling interest in preventing mass shootings, such as the one that took place in Buffalo. (Tr., ECF No. 27 at 45:1–15.)
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