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Free Speech

Court Upholds N.Y. Law Mandating Platforms Post Terms of Service and Report How Content Moderation Policies Have Been Enforced

Eugene Volokh | 8.26.2026 5:06 PM

From Judge John Cronan (S.D.N.Y.) today in X Corp. v. James:

Businesses might not always want to share every detail about the products or services they offer. But when the government requires those businesses to speak truthfully about their offerings, the First Amendment typically allows for that kind of disclosure requirement. "Such disclosure furthers, rather than hinders, the First Amendment goal of the discovery of truth and contributes to the efficiency of the 'marketplace of ideas.'"

That principle resolves this case. The State of New York requires social-media companies to disclose certain aspects of their content-moderation policies. X Corp. wants to share less of its policies than New York requires, so it invokes the First Amendment to avoid New York's requirement. But the First Amendment poses no obstacle to New York's law. Here, more speech—like sunlight—is "the best of disinfectants." …

The [challenged] Act … it requires a "social media company" to "post terms of service for each social media platform owned or operated by the company in a manner reasonably designed to inform all users of the social media platform of the existence and contents of the terms of service." X Corp. refers to this requirement as the "Terms of Service Requirement." Under the Terms of Service Requirement, the "terms of service" publicly posted must "include … contact information for the purpose of allowing users to ask the social media company questions about the terms of service; a description of the process that users must follow to flag content, groups, or other users that they believe violate the terms of service, and the social media company's commitments on response and resolution time; and a list of potential actions the social media company may take against an item of content or a user." …

[T]he Act [also] requires social-media companies to semiannually "submit" to New York's "attorney general a terms of service report," which X Corp. refers to as the "Terms of Service Report." The Terms of Service Report, which the "attorney general shall make … available to the public in a searchable repository on its official internet website," must include several items, such as a platform's "current version of the terms of service" and "a complete and detailed description of any changes to the terms of service since the previous report." X Corp. takes aim at only some of the items to be included in the Terms of Service Report. It calls those items the "Content Category Report Provisions."

Under the Content Category Report Provisions, the Terms of Service Report must include:

[c] A statement of whether the current version of the terms of service defines each of the following categories of content, and, if so, the definitions of those categories, including........

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