Case 1:22-cv-10195-ALC Document 29 Filed 02/14/23 Page 16 of 21
Accordingly, for the reasons stated above, the Court finds that Plaintiffs have demonstrated a substantial likelihood of success on their as applied First Amendment challenges to the Hateful Conduct Law.
- B. Plaintiffs’ Facial First Amendment Challenges
Plaintiffs argue that the Hateful Conduct Law “is overbroad because it applies to a substantial amount of protected speech, especially compared to its nonexistent or minimal lawful application” and is unconstitutionally vague. (Pls.’ Mem., ECF No. 9 at 17–20.) In response, Defendant argues that Plaintiffs have not demonstrated that the law would chill protected speech and that the operative terms of the law are clear and defined. (Def.’s Opp’n., ECF No. 21 at 18–23.)
Both the Supreme Court and the Second Circuit have recognized that “[a]lthough facial challenges are generally disfavored, they are more readily accepted in the First Amendment context.” Picard v. Magliano, 42 F.4th 89, 101 (2d Cir. 2022) (quoting Beal v. Stern, 184 F.3d 117, 125 (2d Cir. 1999)). Although facial invalidation of a statute is a “strong medicine” that should be applied “sparingly and only as a last resort”, Hobbs v. Cnty. of Westchester, 397 F.3d 133, 155 (2d Cir. 2005) (quoting FCC v. Pacifica Foundation, 438 U.S. 726, 743 (1978)); see also Am. Booksellers Found. v. Dean, 342 F.3d 96, 105 (2d Cir. 2003), a court may consider a facial overbreadth claim where a plaintiff has established that there are no set of circumstances under which the challenged statute could be valid or that the challenged statute “lacks any plainly legitimate sweep.” Picard, 42 F.4th at 101 (quoting United States v. Stevens, 559 U.S. 460, 472 (2010)).
“It is established that the courts may, as an exception to ordinary standing requirements, entertain a claim that a law, even if constitutional as applied to the claimant, is so broad that it
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