The Ruling
On June 23, 2026, New York's Court of Appeals issued a 4-3 decision in Volokh v. James that allowed the state's 2022 Online Hate Speech Law to survive a significant First Amendment test — but only by interpreting the statute in a way that strips it of much of what its drafters apparently intended.
The ruling does not settle the case. It answers three interpretive questions certified by the U.S. Court of Appeals for the Second Circuit, which paused its own deliberations in August 2025 to ask New York's highest court what the law actually requires. The Second Circuit will now make the final constitutional determination — a question that remains genuinely open and likely heading toward a ruling that matters far beyond New York.
What the Law Does
Signed by Governor Kathy Hochul on June 6, 2022 (Assembly Bill A7865A), and enacted in the wake of a racially motivated mass shooting in Buffalo, the statute requires social media platforms to do three things: provide a mechanism for users to report 'hateful conduct,' publish a clear policy explaining how they respond to those reports, and send direct responses to individual complainants. The Attorney General can investigate violations and levy fines of $1,000 per day per violation.
The law defines 'hateful conduct' as 'the use of a social media network to vilify, humiliate, or incite violence against a group or a class of persons on the basis of race, color, religion, ethnicity, national origin, disability, sex, sexual orientation, gender identity or gender expression' — covering ten protected characteristics.
The Strongest Case For the Law
Before examining the constitutional problems, the argument for this kind of mandate deserves honest engagement. New York's law does not require platforms to remove content, ban users, or adopt any particular moderation approach. It requires only that platforms tell users how to file complaints and disclose whatever policy they already have. Under the Zauderer doctrine — established by the Supreme Court in Zauderer v. Office of Disciplinary Counsel (1985) — compelled disclosure of factual information can satisfy First Amendment scrutiny when rationally related to a substantial government interest and not unduly burdensome. Requiring platforms to be transparent about their own content policies, the argument goes, does not compel agreement with state-defined norms; it compels honesty about a company's own practices.
The law's defenders can also point to a genuine regulatory gap: major platforms routinely publish aggregate enforcement statistics while providing victims of coordinated harassment campaigns little information about what happens to specific complaints. A minimum transparency floor is not self-evidently disproportionate.
The District Court's Block
In February 2023, U.S. District Judge Andrew Carter (S.D.N.Y.) enjoined the law, finding it likely violated the First Amendment on two grounds. First, it compelled platforms to 'disseminate a message about the definition of hateful conduct' even if they disagreed with that characterization — a classic compelled-speech problem. Second, terms like 'vilify' and 'humiliate' were so vague they risked chilling protected political speech; Judge Carter noted that hashtags as mainstream as #BlackLivesMatter or #BlueLivesMatter might fall within the definition.
The Second Circuit certified three questions to the state court: whether the statute requires platforms to explicitly reference the state's definition in their policies, whether the reporting mechanism must specifically address state-defined hateful conduct, and whether platforms must individually respond to complaints about such conduct.
The Court of Appeals' Interpretive Maneuver
In a majority opinion authored by Judge Anthony Cannataro, the court answered all three questions in the negative. Platforms, the majority held, are not required to adopt or even reference New York's definition of 'hateful conduct.' They need only provide a generic reporting mechanism — one accepting reports about 'anything a user wishes to report' — and disclose whatever content moderation policy they already have. The majority explicitly acknowledged that a platform could comply by disclosing a policy that it won't moderate any content at all.
This is a striking result. Under the majority's reading, a platform with no hate speech policy, no intent to act on hate speech complaints, and a catch-all report button for any user grievance satisfies a law formally titled the Online Hate Speech Law. The court achieved constitutional survival by reading the operative definition of 'hateful conduct' out of the statute's requirements.
The Dissent's Problem
Judge Michael Garcia's dissent identifies the core structural flaw: you cannot excise the statute's definition from provisions that explicitly reference it. The definition is not decorative — it is woven into the operative text. By narrowing the law into a generic disclosure mandate, the majority did not clarify the statute; it rewrote it. 'The uncertainty created by the majority's distortion of the statute increases the risk of arbitrary and abusive enforcement,' Garcia wrote.
This is not merely an academic objection. Rumble and Volokh can now argue before the Second Circuit that New York enforcement officials will not bind themselves to the majority's narrow reading — leaving platforms to guess which interpretation actually governs. That vagueness argument, distinct from the original compelled-speech challenge, travels back to the circuit court as a live and potentially decisive constitutional claim.
The NetChoice Backdrop
The case returns to the Second Circuit in the shadow of Moody v. NetChoice (decided July 1, 2024), in which a unanimous Supreme Court held that platforms engage in constitutionally protected editorial discretion when curating content, and that states 'may not interfere with private actors' speech to advance its own vision of ideological balance.' Moody addressed must-carry obligations rather than disclosure mandates, but its recognition that platform editorial choices are expressive acts has direct relevance here. If requiring platforms to acknowledge a state-defined category of harmful speech — even by creating a reporting mechanism nominally organized around it — shapes how users and operators perceive platform norms, that is not purely ministerial disclosure.
The narrowed law the New York Court of Appeals describes may escape strict scrutiny. But whether it survives Zauderer review — or whether vagueness concerns and the enforcement-discretion problem Judge Garcia flagged prove fatal — is now the Second Circuit's call.
What Comes Next
State legislatures watching this case should draw a cautious lesson. The survival of New York's law — if it survives — will owe not to the strength of its original drafting but to a judicial reinterpretation that guts its substantive content. Laws designed to address genuine harms from coordinated online harassment deserve more careful construction: narrower definitions, clearer operative requirements, and a candid engagement with the compelled-disclosure doctrine rather than a hope that appellate courts will rescue them through revision. A transparency mandate that requires platforms to report nothing in particular, about conduct defined nowhere in their actual disclosures, is not a meaningful transparency mandate — it is an administrative ritual.