Page:Volokh v. James.pdf/8

 “Government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed.” Id. Additionally, when “a state compels an individual to speak a particular message, the state alters the content of their speech, and engages in content-based regulation.” CompassCare v. Cuomo, 465 F. Supp. 3d 122, 155 (N.D.N.Y. 2020) (quoting Nat’l Inst. of Fam. & Life Advocs. v. Becerra, 138 S. Ct. 2361, 2371 (2018) (“NIFLA”) (internal quotations and alterations omitted)).
 * ii.Whether the Hateful Conduct Law Compels Speech

Plaintiffs argue that the law regulates the content of their speech by compelling them to speak on an issue on which they would otherwise remain silent. (Pl.’s Mem., ECF No. 9 at 12; Tr., ECF No. 27 at 47:5–13.) Defendant argues that the law regulates conduct, as opposed to speech, because there is no requirement for how a social media network must respond to any complaints and because the law does not even require the network to specifically respond to a complaint of hateful content. (Def.’s Opp’n, ECF No. 21 at 9.) Instead, the law merely requires that the complaint mechanism allows the network to respond, if that is the social media network’s policy. (Tr., ECF No. 27 at 11:25–121212 [sic]:4.)

Defendant likens the Hateful Conduct Law to the regulation upheld in ''Restaurant Law Ctr. v. City of New York'', which required fast-food employers to set up a mechanism for their employees to donate a portion of their paychecks to a non-profit of that employee’s choosing. 360 F. Supp. 3d 192 (S.D.N.Y. 2019). The court found that this did not constitute “speech”—nor did it constitute “compelled speech”—noting that the “ministerial act” of administering payroll deductions on behalf of their employees did not constitute speech for the employers. Id. at 214. As such, the court applied rational basis review and found that the regulation passed muster. Id. at 221.