Case 1:22-cv-10195-ALC Document 29 Filed 02/14/23 Page 9 of 21
However, those facts are not applicable here. The Hateful Conduct Law does not merely require that a social media network provide its users with a mechanism to complain about instances of “hateful conduct”. The law also requires that a social media network must make a “policy” available on its website which details how the network will respond to a complaint of hateful content. In other words, the law requires that social media networks devise and implement a written policy—i.e., speech.
For this reason, the Hateful Conduct Law is analogous to the state mandated notices that were found not to withstand constitutional muster by the Supreme Court and the Second Circuit: NIFLA and Evergreen. In NIFLA, the Supreme Court found that plaintiffs—crisis pregnancy centers opposing abortion—were likely to succeed on the merits of their First Amendment claim challenging a California law requiring them to disseminate notices stating the existence of family-planning services (including abortions and contraception). NIFLA, 138 S. Ct. at 2371. The Court emphasized that “[b]y compelling individuals to speak a particular message, such notices ‘alte[r] the content of [their] speech.’” Id. (quoting Riley v. National Federation of Blind of N. C., Inc., 487 U.S. 781, 795 (1988)). Likewise, in Evergreen, the Second Circuit held that a state-mandated disclosure requirement for crisis pregnancy centers impermissibly burdened the plaintiffs’ First Amendment rights because it required them to “affirmatively espouse the government’s position on a contested public issue….” Ass’n, Inc. v. City of New York, 740 F.3d 233, 250 (2d Cir. 2014) (quoting Alliance for Open Soc’y Int’l, Inc. v. U.S. Agency for Int’l Dev., 651 F.3d 218, 236 (2d Cir. 2011), aff’d, 570 U.S. 205 (2013)).
Similarly, the Hateful Conduct Law requires a social media network to endorse the state’s message about “hateful conduct”. To be in compliance with the law’s requirements, a social media network must make a “concise policy readily available and accessible on their website and
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