Case 1:22-cv-10195-ALC Document 29 Filed 02/14/23 Page 17 of 21
“may inhibit the constitutionally protected speech of third parties[.]” Hobbs, 397 F.3d at 155. “The purpose of an overbreadth challenge is to prevent the chilling of constitutionally protected conduct, as prudent citizens will avoid behavior that may fall within the scope of a prohibition, even if they are not entirely sure whether it does.” Farrell v. Burke, 449 F.3d 470, 499 (2d Cir. 2006). “[T]he overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.” Id. (quoting Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973)). “When a court finds that a statute suffers from such substantial overbreadth, all enforcement of the statute is generally precluded.” Am. Booksellers Found., 342 F.3d at 104.
As the Court has already discussed, the law is clearly aimed at regulating speech. Social media websites are publishers and curators of speech, and their users are engaged in speech by writing, posting, and creating content. Although the law ostensibly is aimed at social media networks, it fundamentally implicates the speech of the networks’ users by mandating a policy and mechanism by which users can complain about other users’ protected speech.
Moreover, the Hateful Conduct law is a content based regulation. The law requires that social media networks develop policies and procedures with respect to hate speech (or “hateful conduct” as it is recharacterized by Defendant). As discussed, the First Amendment protects individuals’ right to engage in hate speech, and the state cannot try to inhibit that right, no matter how unseemly or offensive that speech may be to the general public or the state. See Matal, 137 S. Ct. at 1764; see also R.A.V., 505 U.S. at 391. Thus, the Hateful Conduct Law’s targeting of speech that “vilifi[es]” or “humili[ates”] a group or individual based on their “race, color, religion, ethnicity, national origin, disability, sex, sexual orientation, gender identity or gender expression” N.Y. Gen. Bus. Law § 394-ccc(1)(a), clearly implicates the protected speech of social media users.
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