Volokh v. James: Compliance with New York’s Hateful Conduct Law Requires Only a Content-Neutral Reporting Channel and Policy Broad Enough to Cover “Hateful Conduct,” Without Mandatory Responses or Explicit Statutory Labeling

I. Introduction

In Volokh v James (2026 NY Slip Op 03913), the New York Court of Appeals answered three certified questions from the United States Court of Appeals for the Second Circuit concerning the meaning and operational reach of General Business Law § 394-ccc—New York’s “Hateful Conduct Law” (HCL). The plaintiffs—Eugene Volokh and two social media-network entities (Locals Technology Inc. and Rumble Canada, Inc.)—challenged the statute in federal court on First Amendment grounds, contending the law effectively compels speech and chills protected expression. The defendant is the New York Attorney General, charged with enforcing the statute.

The federal district court preliminarily enjoined enforcement (see Volokh v James, 656 F Supp 3d 431 [SD NY 2023]), and the Second Circuit concluded the constitutional analysis turned on a threshold issue of New York statutory interpretation (see 148 F4th 71 [2d Cir 2025]). The Second Circuit therefore certified questions focused on whether the HCL can be satisfied without: (i) explicitly invoking the statute’s definition of “hateful conduct” in a platform’s reporting tool or policy disclosure; and (ii) requiring a platform to respond to user reports.

The Court of Appeals’ answers substantially narrow the statute’s practical regulatory demands: platforms may comply with generic, content-neutral tools and broad disclosures, and they are not required to respond to individual reports.

II. Summary of the Opinion

Judge Cannataro, writing for the majority, held:

  • Certified Question (1): A network complies with § 394-ccc(3) even if its policy does not explicitly reference or address the statutory definition of “hateful conduct,” so long as the policy is broad enough that users can infer how the network will handle reports that fall within that definition. Answer: Yes.
  • Certified Question (2): A network complies with § 394-ccc(2) even if its reporting mechanism does not explicitly reference “hateful conduct,” so long as the mechanism can be used to report hateful conduct (including via a general-purpose “report” function). Answer: Yes.
  • Certified Question (3): The statute does not require a network to provide a direct response to each report; it requires only that the mechanism “allow” the network to respond. Answer: No.

The dissent (Garcia, J., dissenting in part) argued the majority’s interpretation improperly strips the statutory definition from the operative requirements, creates uncertainty, invites arbitrary enforcement, and amounts to impermissible judicial rewriting under the guise of harmonization or constitutional avoidance.

III. Analysis

A. Precedents Cited

1. Core New York interpretive framework (text, purpose, and harmonization)

  • Matter of Albany Law School v New York State Off. of Mental Retardation & Dev. Disabilities, 19 NY3d 106 (2012): Cited for the foundational principle that the court’s “primary consideration” is legislative intent. Here, that principle anchors the majority’s insistence that the statutory text—read as a whole—reflects a limited transparency-and-user-empowerment measure rather than a direct moderation mandate.
  • Majewski v Broadalbin- Perth Cent. School Dist., 91 NY2d 577 (1998): Cited for beginning with the “plain meaning” of the language. The majority uses Majewski to justify its minimal-function reading: the statute requires a mechanism capable of receiving reports and (optionally) responding, not a mechanism labeled with the State’s definition.
  • Lubonty v U.S. Bank N.A., 34 NY3d 250 (2019) and McKinney's Cons Laws of NY, Book 1, Statutes § 98: Cited for harmonizing provisions and giving words their natural meaning. These authorities matter because the majority treats the statute’s savings clause as a key contextual signal limiting how aggressively the operative provisions should be construed.

2. Avoiding constructions that create constitutional problems

  • Overstock.com, Inc. v New York State Dept. of Taxation & Fin., 20 NY3d 586 (2013): Cited for the proposition that courts avoid interpretations that needlessly render a law unconstitutional. The majority relies on this general approach in rejecting the plaintiffs’ more speech-compelling reading—an interpretation the Second Circuit suggested would likely fail heightened scrutiny.
  • People v Viviani, 36 NY3d 564 (2021): Cited (including in footnote 5) for the modern statement of constitutional avoidance: courts should construe statutes, where “fairly susceptible,” to avoid constitutional doubt. The majority deploys Viviani as a backstop: even if text were less clear, avoidance would push toward a non-compelling construction.
  • People v Dietze, 75 NY2d 47 (1989) and People v Marquan M., 24 NY3d 1 (2014): Noted in the dissent’s discussion (via the Second Circuit’s certification posture) as key “avoidance” limits in speech cases—i.e., avoidance cannot become “wholesale revision” and may create vagueness concerns if courts rewrite what the statute “seems” to say. The dissent uses these cases to argue the majority exceeded permissible narrowing.

3. Giving effect to every word; avoiding surplusage; deliberate word choice

  • Bank of Am., N.A. v Kessler, 39 NY3d 317 (2023); Matter of DeVera v Elia, 32 NY3d 423 (2018); Matter of Burger King v State Tax Commn., 51 NY2d 614 (1980); and People v Sharp, 107 NY 427 (1887): Cited to support the interpretive presumption that the legislature’s word choice is meaningful and provisions should be harmonized. The majority uses these cases to justify reading “include[] how” and “allow” as flexible, not mandatory, terms—and to reconcile the disclosure requirement with the savings clause.
  • Matter of Mestecky v City of New York, 30 NY3d 239 (2017): Cited by the dissent for the anti-superfluity canon. The dissent argues the majority’s construction renders the statutory definition of “hateful conduct” functionally unnecessary because platforms can comply without referencing it and by adopting a generic “all complaints” approach.

4. Titles vs text and the role of headings

  • People v Page, 35 NY3d 199 (2020): Cited in the dissent to emphasize that the statutory text governs over title/headings. The majority responds (footnote 6) that the dissent improperly elevates the HCL’s title (“hateful conduct prohibited”) into a substantive mandate not reflected in § 394-ccc(2)-(3), especially given the savings clause.

5. Separation of powers limits on “saving” constructions

  • Tennessee Gas Pipeline Co. v Urbach, 96 NY2d 124 (2001) and Matter of Wood v Irving, 85 NY2d 238 (1995): Cited by the dissent to argue that courts cannot override plain statutory commands by using a savings clause or avoidance to effectively rewrite the statute. These cases frame the dissent’s core charge: the majority is not “construing” ambiguous language but “amending” it.

6. Federal First Amendment and disclosure doctrine referenced by the Second Circuit posture

  • Zauderer v Office of Disciplinary Counsel of Supreme Court of Ohio, 471 US 626 (1985): Quoted in the Second Circuit discussion (recited by the Court of Appeals) for the rule that compelled disclosure of “purely factual and uncontroversial information” about commercial terms may be permissible. The Court of Appeals’ interpretation aligns with making § 394-ccc(3) look like a transparency requirement rather than compelled ideological endorsement.
  • X Corp. v Bonta, 116 F4th 888 (9th Cir 2024): Cited in the dissent for the proposition that forcing platforms to speak in “controversial categories of content” can be compelled speech. The dissent analogizes the HCL to the California moderation-reporting regime criticized there, emphasizing that the definition of “hateful conduct” is itself contentious.

7. Other cited authorities that contextualize platform liability

  • Federal Trade Commission v LeadClick Media, LLC, 838 F3d 158 (2d Cir 2016) and 47 USC § 230 (c): Noted in footnote 1 to underscore federal limits on holding intermediaries liable for “publisher’s traditional editorial functions.” While not the basis of the decision, this reference reinforces the backdrop that direct moderation mandates are legally fraught—helping explain why the enacted 2022 HCL is narrower than the 2020 proposal.

B. Legal Reasoning

1. The Report Mechanism Requirement: “provide and maintain” a mechanism, not a State-labeled channel

The majority’s interpretive move is to treat § 394-ccc(2) as imposing functional capability, not semantic endorsement. The statute requires a “clear and easily accessible mechanism” that enables users to “report incidents of hateful conduct,” and that “shall allow the social media network to provide a direct response.”

Key textual pivots:

  • “Mechanism … to report” is read as a requirement that a tool exist and be accessible; it is not read as requiring a dedicated “hateful conduct” form or label.
  • Absence of exclusivity language: because the statute does not say “solely” or “exclusively,” a general “report” function suffices so long as it can be used to report hateful conduct among other things.
  • “Allow” is permissive: the tool must make it possible for the network to respond, but response is not mandatory (this also foreshadows the answer to Question 3).

The majority offers a boundary example: a tool limited to technical issues would not comply, because it would not allow reports of hateful conduct. Conversely, a content- and viewpoint-neutral reporting channel would comply because hateful conduct could be reported through it.

2. The Policy Disclosure Requirement: “includes how” can be satisfied by broad policies whose logic reaches hateful-conduct reports

Under § 394-ccc(3), platforms must maintain an accessible “clear and concise policy” that “includes how” the platform will respond to and address reports of hateful conduct. The majority reads “includes” as flexible: the policy need not track the statutory definition verbatim; it must communicate enough that an ordinary user can understand what will happen if they report content that would fall within the definition.

The majority’s compliance examples are revealing:

  • A platform may disclose it generally will not regulate or remove content. That policy necessarily covers (by inclusion) what the statute calls hateful conduct, because it covers all content.
  • A platform may disclose it will act only on illegal content or threats of violence. That informs users how the platform would handle a subset of hateful conduct (e.g., incitement/threat-related reports) while declining to act on other reported content.

This reasoning positions § 394-ccc(3) as a transparency rule: disclose the platform’s approach, whatever it is—even if the approach is “we do nothing.”

3. The savings clause as a structural constraint

The majority treats § 394-ccc(4)—the clause stating nothing shall be construed as an obligation that adversely affects rights or freedoms including First Amendment rights—as a strong interpretive signal that the Legislature disavowed compelled ideological messaging. That provision is used to “harmonize” the statute by preferring readings that minimize constitutional friction.

The dissent sharply contests this use of the savings clause, arguing a savings clause cannot override clear operative text and cannot license judicial redrafting. Practically, however, the majority’s approach treats the savings clause as corroboration that the Legislature intended a limited “mechanisms and information” statute rather than a speech-regulating or content-removal regime.

4. Certified Question (3): no mandatory individualized responses

The Court’s answer to Question (3) is purely textual: § 394-ccc(2) requires the mechanism to “allow” a direct response; it does not require that a response be provided. Likewise, § 394-ccc(3) requires disclosure of “how” the platform will respond, which may be “we do not respond.”

C. Impact

1. Immediate impact on the federal constitutional litigation

The Second Circuit framed the constitutional stakes: if the statute requires a dedicated “hateful conduct” mechanism, or requires responses, or requires policies to expressly address “hateful conduct,” then it risks being treated as compelled speech subject to heightened scrutiny (and likely invalid). The Court of Appeals’ narrowing answers remove much of that compulsion premise by making compliance possible without adopting the State’s label or viewpoint and without mandatory responsive engagement.

In practice, the decision gives federal courts a state-law construction under which § 394-ccc looks closer to a neutral consumer-information and user-channel requirement than a content-based speech regulation.

2. Compliance posture for platforms

  • Reporting tools: Platforms can satisfy § 394-ccc(2) with a generic “report” channel that is easy to access on app and website, so long as it is not limited to categories excluding hateful conduct.
  • Disclosures: Platforms can satisfy § 394-ccc(3) with a concise policy stating their general approach to handling reports, even if the approach is minimalist or non-interventionist.
  • No response mandate: Platforms may lawfully adopt policies of non-response, so long as that is disclosed.

3. Enforcement and drafting consequences

The decision effectively shifts § 394-ccc away from being a quasi-moderation statute and toward being a transparency-and-access statute. If the Legislature intended stronger interventions (e.g., dedicated hateful-conduct channels or response obligations), it would likely need to amend the statute with clearer mandatory terms—while confronting First Amendment constraints more directly.

The dissent highlights a different potential “impact”: increased ambiguity about what counts as compliance may invite aggressive or uneven enforcement. The majority minimizes this by defining compliance in simple functional terms (a general report mechanism suffices; a broad policy suffices; responses are optional), thereby attempting to reduce enforcement discretion rather than increase it.

IV. Complex Concepts Simplified

  • Certified questions: When a federal appellate court confronts an unsettled question of state law that controls the outcome, it may ask the state’s highest court to answer that state-law question. The federal court then applies those answers to resolve the federal case.
  • Compelled speech: A First Amendment problem arises when the government forces a private speaker to convey the government’s message or adopt the government’s framing. The debate here was whether requiring “hateful conduct” reporting/policy mechanisms forces platforms to promote the State’s contested definition.
  • Chilling effect: Even without direct censorship, laws can deter lawful speech if speakers fear scrutiny or penalties. The district court worried the statute’s targeting of “hateful conduct” could chill users.
  • Constitutional avoidance: If statutory text is reasonably open to multiple readings, courts prefer the reading that avoids serious constitutional doubts. The dissent argues avoidance cannot justify rewriting unambiguous text.
  • Savings clause: A statutory provision stating the law should not be read to infringe certain rights. The majority treats the HCL’s savings clause as strong evidence the Legislature intended a limited, non-compelling construction; the dissent warns a savings clause cannot be used to negate the operative commands.
  • “Include” / “allow” vs “must”: The majority’s result turns on ordinary meaning: “allow” is permissive (enables, does not require) and “includes” can be satisfied by general policies that necessarily cover the relevant category.

V. Conclusion

Volokh v James establishes a narrowing, compliance-oriented construction of General Business Law § 394-ccc: (1) platforms need not label their tools or policies with the statute’s “hateful conduct” definition; (2) a general-purpose reporting channel can satisfy the “mechanism” requirement; (3) the statute does not mandate individualized responses; and (4) the disclosure requirement is met if users can understand from the policy—explicitly or by necessary implication—how the platform will handle reports that fall within the statutory definition.

Doctrinally, the decision exemplifies New York’s interpretive emphasis on plain meaning, harmonization, and constitution-sensitive construction—while also foregrounding an internal dispute about the line between permissible narrowing and impermissible rewriting in speech-adjacent statutes. Practically, the ruling re-frames the HCL as a transparency and user-access measure rather than a mandate to condemn, categorize, or remove disfavored speech.