Volokh v. James

NEW YORK – Alliance Defending Freedom attorneys filed a friend-of-the-court brief Tuesday on behalf of Christian satire news site The Babylon Bee. The brief urges the U.S. Court of Appeals for the 2nd Circuit to uphold a lower court’s decision that halted New York’s law coercing online entities including the Bee to monitor and crack down on what the state deems “hateful conduct.”

Filed in support of UCLA constitutional law professor Eugene Volokh—proprietor of the influential blog “The Volokh Conspiracy”—along with online platforms Rumble and Locals, the Bee’s brief underscores the broad implications of a 2022 law passed by New York state, which is being challenged in Volokh v. James. As the brief explains, the law applies to satire and humor as well as to views on hot-button cultural issues like gender identity, public health policy, and more.

“The satirists at The Babylon Bee already have their work cut out for them just trying to keep their satirical headlines weeks or even days ahead of actual news—they shouldn’t also have to worry that humorless state officials will deprive them of their First Amendment freedoms,” said ADF Legal Counsel Bryan Neihart. “Every American is free to peacefully express his point of view, and that includes humor and sarcasm. Our freedoms don’t hinge on whether the state agrees with what we have to say, or whether they appreciate our sense of humor.”

Under the law, social media networks must create a system for users to report violations of state-dictated content moderation policies that rely on vague and broadly understood umbrella terms like “hateful conduct.” These same networks must then endorse and publish on their own websites and applications New York’s definition of “hateful conduct” even if they disagree with that definition. Sites that allow comments—like The Volokh Conspiracy and the Bee—would be commandeered as enforcement tools for the state’s censorship program.

The brief explains that New York’s censorship law specifically targets constitutionally protected speech, banishing dissenting voices from the public square and chilling the speech of those who may otherwise have expressed themselves if not for the likelihood that they would face punishment and censorship for doing so.

“These tattle-tale requirements chill reasonable people’s speech by discouraging them from making comments that might arguably fit within a reportable category of speech,” the brief states. “The marketplace for ideas and debate becomes a sea of suspicion and retaliatory reports.”

“Government officials cannot bypass the First Amendment by forcing Americans to censor themselves, yet that is exactly what New York is trying to do here,” said ADF Senior Counsel and Senior Vice President for Corporate Engagement Jeremy Tedesco. “Worse, New York is forcing social media networks to adopt policy language that clearly violates the First Amendment. So-called ‘hateful conduct’ policies are impermissibly overbroad and permit those applying them to censor opinions they don’t like. We’re seeing that form of censorship more and more from government officials, social media platforms, and even financial institutions. That’s a disturbing trend and it needs to stop.”

Alliance Defending Freedom is an alliance-building, non-profit legal organization committed to protecting religious freedom, free speech, parental rights, and the sanctity of life.

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