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Case 1:22-cv-10195-ALC Document 29 Filed 02/14/23 Page 19 of 21

put social media users on notice of what kinds of speech or content is now the target of government regulation.

Accordingly, because the Hateful Conduct Law appears to “reach[…] a substantial amount of constitutionally protected conduct”, Farrell, 449 F.3d at 496 (quoting Kolender v. Lawson, 461 U.S. 352, 358 n.8 (1983)), the Court finds that Plaintiffs have demonstrated a likelihood of success on their facial challenges under the First Amendment.^[1]

C. Preemption Under Section 230 of the Communications Decency Act

Lastly, Plaintiffs allege that the Hateful Conduct Law is preempted by Section 230 of the Communications Decency Act because it imposes liability on websites by treating them as publishers. (Pl.’s Mem., ECF No. 9 at 20–⁠21.)

The Communications Decency Act provides that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” 47 U.S.C. § 230(c)(1); see also Ricci v. Teamsters Union Loc. 456, 781 F.3d 25, 27 (2d Cir. 2015). The Act has an express preemption provision which states that “[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” 47 U.S.C. § 230(e)(3).

↑ The Court also finds that severing parts of the law would not serve to save the entire statute. As stated in footnote four, while speech that incites violence is not protected by the First Amendment, whether speech does in fact incite violence is a fact-based inquiry. See Am. Freedom Def. Initiative, 70 F. Supp. 3d at 581 (For speech to incite violence, “there must be ‘evidence or rational inference from the import of the language, that [the words in question] were intended to produce, and likely to produce, imminent’ lawless action.”). The Supreme Court has rarely applied this standard, “and never explicitly found speech to be on the proscribable side of the standard.” Id. Thus, it is not clear that limiting the Hateful Conduct Law only to speech that incites violence would necessarily pass constitutional muster. In addition, at oral argument, Plaintiffs argued that the law was not severable. (Tr., ECF No. 27 at 62:8–63:7.)

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[1] The Court also finds that severing parts of the law would not serve to save the entire statute. As stated in footnote four, while speech that incites violence is not protected by the First Amendment, whether speech does in fact incite violence is a fact-based inquiry. See Am. Freedom Def. Initiative, 70 F. Supp. 3d at 581 (For speech to incite violence, “there must be ‘evidence or rational inference from the import of the language, that [the words in question] were intended to produce, and likely to produce, imminent’ lawless action.”). The Supreme Court has rarely applied this standard, “and never explicitly found speech to be on the proscribable side of the standard.” Id. Thus, it is not clear that limiting the Hateful Conduct Law only to speech that incites violence would necessarily pass constitutional muster. In addition, at oral argument, Plaintiffs argued that the law was not severable. (Tr., ECF No. 27 at 62:8–63:7.)

[1]

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