“Certifying Speech”: Volokh v. James and the Future Scrutiny of Social-Media Disclosure Mandates

I. Introduction

Volokh v. James, No. 23-356 (2d Cir. Aug. 1, 2025), is the Second Circuit’s first deep dive into state attempts to regulate how social-media sites explain and receive complaints about user content. Sparked by a horrific 2022 mass shooting in Buffalo, New York enacted the “Hateful Conduct Law” (N.Y. Gen. Bus. Law § 394-ccc). The statute obliges any “social media network” doing business in the State to (1) post a policy describing how it will address “hateful conduct,” and (2) maintain an online mechanism through which users can report such conduct and obtain a response. Because “hateful conduct” is defined broadly to include speech that may be fully protected by the First Amendment, three plaintiffs—the legal scholar Eugene Volokh (operator of The Volokh Conspiracy blog), Locals Technology Inc., and Rumble Canada Inc.—sued New York’s Attorney General, Letitia James, seeking to block enforcement.

Judge Carter of the Southern District of New York granted a preliminary injunction, holding the law likely violated the First and Fourteenth Amendments. On appeal, the Second Circuit did not resolve the constitutional question; instead, it certified three state-law questions to the New York Court of Appeals, emphasising that the statute’s meaning is ambiguous and outcome-determinative. In doing so, the panel articulated a road-map for evaluating compelled-speech regulations directed at online platforms: the level of First Amendment scrutiny hinges on whether the statute forces platforms to adopt the State’s definitions or merely requires neutral disclosures.

II. Summary of the Judgment

Two competing readings: If § 394-ccc forces platforms to incorporate the State’s definition of “hateful conduct,” the law is content-based compelled speech subject to (at least) intermediate, if not strict, scrutiny and likely invalid. If, however, a platform may comply by disclosing any moderation policy (even one that disclaims the statutory definition) and by hosting a generic complaint form, the mandate is closer to a commercial disclosure governed by the more lenient Zauderer standard and could survive.
Severability: The court treated the “Policy Disclosure Requirement” and the “Report Mechanism Requirement” as severable commands and analysed them separately.
Certification: Because New York courts had not yet interpreted § 394-ccc, and because adopting one interpretation (the “neutral disclosure” reading) could save the statute, the panel certified three questions asking whether a platform may (1) omit any mention of the statutory definition in its policy, (2) provide a generic reporting tool, and (3) decline to respond substantively to individual complaints.
Partial dissent: Judge Jacobs would have affirmed the injunction outright, calling any saving construction untenable and warning that the law imposes content- based burdens even under the State’s narrow reading.

III. Analysis

A. Precedents Cited and Their Influence

Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985)
Established that compelled commercial disclosures of “purely factual and uncontroversial” information receive relaxed scrutiny if reasonably related to a legitimate state interest and not unduly burdensome. The majority frames the possible “neutral disclosure” reading of § 394-ccc as Zauderer-like; the dissent insists the law is too subjective and punitive to fit within Zauderer.
National Institute of Family and Life Advocates (NIFLA) v. Becerra, 585 U.S. 755 (2018)
Drew a sharp line between uncontroversial factual disclosures and compelled advocacy. The panel leverages NIFLA to show that any requirement referencing “hateful conduct” is controversial by nature.
Reed v. Town of Gilbert, 576 U.S. 155 (2015) & Brown v. Ent. Merchants Ass’n, 564 U.S. 786 (2011)
Provide the modern framework that content-based regulations are presumptively unconstitutional and trigger strict scrutiny.
Moody v. NetChoice, 603 U.S. 707 (2024)
Confirmed that platform curation itself is expressive activity. The majority quotes Moody to treat forced adoption of State terminology as compelled speech.
Expressions Hair Design v. Schneiderman, 877 F.3d 99 (2d Cir. 2017) & Loomis v. ACE American, 91 F.4th 565 (2d Cir. 2024)
Reinforce the Circuit’s practice of certifying ambiguous state statutes whose construction could obviate federal constitutional questions.

B. The Court’s Legal Reasoning

Step 1 – Characterising the Mandate: The panel first decides that what matters is whether § 394-ccc dictates substantive positions regarding “hateful conduct.” If yes, strict/intermediate scrutiny applies; if no, possibly Zauderer.
Step 2 – Severability: Applying New York severability doctrine, the panel holds the two substantive obligations—policy posting and reporting mechanism—operate independently; one could fall while the other survives.
Step 3 – Constitutional Avoidance: Because an “ordinary” reading signals compelled adoption of the State’s definition but the text might also support a content-neutral disclosure reading, the court invokes the federal and state canons requiring courts to adopt saving constructions where “fairly possible.”
Step 4 – Certification: Rather than guess at legislative intent, the Second Circuit asks New York’s highest court to clarify the statute—exactly the function of certification when state law is unsettled and dispositive.

C. Likely Impact of the Judgment

Blueprint for other circuits: The decision provides a methodology for analysing social-media transparency laws cropping up nationwide (e.g., in Texas, Florida, California). The key variables are (a) whether the State’s terminology must be used, and (b) whether the law merely demands factual transparency versus true compelled speech.
Legislative drafting lessons: States seeking disclosure-only regimes must (i) avoid mandating specific definitions, (ii) steer clear of punitive enforcement tied to viewpoint-based disagreements, and (iii) declare explicitly that no substantive response is required.
Amplified role for state courts: Certification underscores that state high courts may effectively “save” or sink such laws through statutory construction, before any merits review by the U.S. Supreme Court.
In-house compliance recalibration: Platforms operating nationwide will watch the New York Court of Appeals closely; a narrow construction could normalise lightweight “transparency portals,” whereas a broad reading (and likely invalidation) could chill similar bills in other states.
First Amendment doctrine: The panel reinforces a sliding scale of scrutiny—Zauderer, Central Hudson, strict—and ties where a statute lands on that scale to whether it compels speech or merely discloses it.

IV. Complex Concepts Simplified

Compelled Speech: Occurs when government forces a private actor to speak or subscribe to a particular viewpoint, rather than merely restricting speech. The archetype is forcing a newspaper or parade to include an unwanted message.
Zauderer Standard: A special, lenient First Amendment test for mandatory disclosures that are purely factual, uncontroversial, and reasonably related to a legitimate state interest.
Intermediate vs. Strict Scrutiny: Intermediate requires that the law advance a substantial interest and be narrowly tailored; strict requires a compelling interest and the least restrictive means. Content-based or viewpoint-based laws almost always trigger strict scrutiny.
Certification of State-Law Questions: A federal court may halt proceedings and ask a state’s highest court to interpret ambiguous state law when (1) no authoritative state precedent exists, (2) the answer is outcome-determinative, and (3) the question implicates important state interests. The practice promotes federalism and minimizes constitutional confrontation.

V. Conclusion

Volokh v. James does not finally decide whether New York’s Hateful Conduct Law passes constitutional muster. Instead, it breaks new doctrinal ground by linking the First Amendment standard of review to nuanced statutory construction and by elevating certification as the preferred tool for reconciling state innovation with federal free-speech guarantees. Legislatures contemplating “transparency” requirements for online platforms now know that:

If the statute even indirectly pressures platforms to adopt government definitions or viewpoints about “hate,” strict or intermediate scrutiny will likely apply.
If the law truly demands only neutral, factual disclosure, a Zauderer-style rationale may be available—but only if the burden is modest and enforcement mechanisms are not weaponised.
Courts remain wary of punitive schemes that, by design or effect, chill speech before any judicial review.

Whatever answers the New York Court of Appeals supplies, Volokh v. James already shapes the national conversation: transparency mandates must respect platform editorial freedom, and the judiciary will not hesitate to scrutinise such laws—piece by piece or in their entirety—through the lens of the First Amendment.