On Wednesday, the Ninth Circuit Court of Appeals voted to block a recent California law designed to rein in hate speech and disinformation on social media, delivering a blow to the state’s efforts to regulate platforms.
The ruling stems from a lawsuit filed by X, formerly known as Twitter, which has argued that California’s law is a violation of free speech. By siding with the company, the court’s ruling undercuts a modest first attempt by the state to moderate untruthful and toxic content on such platforms, which experts have found to be particularly harmful to children and teenagers.
“Light-touch laws like the one at issue in this case are the slightest steps in the right direction,” said Tom McBrien, a lawyer at the non-profit Electronic Privacy Information Center, or EPIC, which filed a brief in favor of upholding the law. “If even they cannot withstand First Amendment scrutiny, it's hard to imagine how the current lack of platform transparency could be remedied,” he said.
In its ruling, the appeals court issued a preliminary injunction blocking the most important pieces of the California law, and sent the case back to a lower court, which will decide if the remaining pieces should also be blocked.
Enacted in 2022, Assembly Bill 587 has required big social media companies to publish their terms of service twice a year, along with content moderation policies. It asks them to describe what they’re doing — or not doing — to contain influences in particular categories: hate speech, racism, and disinformation; extremism or radicalization; harassment; foreign political interference; and controlled substance distribution.
In Wednesday’s opinion, the appeals court ruled that the categories “compel non-commercial speech,” in violation of X’s First Amendment rights. In other words, the law forces social media companies to define hate speech or misinformation.
The categories “require a company to recast its content-moderation practices in language prescribed by the State, implicitly opining on whether and how certain controversial categories of content should be moderated.”
“We are reviewing the opinion and will respond appropriately in court,” California Attorney General Rob Bonta's office wrote in an emailed statement to Gazetteer SF.
At a July 16 hearing, Gabrielle D. Boutin, a deputy attorney general, argued the law is simply a “transparency measure” to help consumers understand what social media companies are doing to curb toxic content.
“It’s in one place so the public can compare what, if at all, each of these companies may be doing with respect to certain types of categories of information,” Boutin argued. About three dozen social media companies have complied with the law. X is so far the only one to fight it.
While the First Amendment protects free speech, it also guards against required, or compelled, speech. The three-judge panel of the appeals court expressed sharp doubts that the state law could survive X’s free speech challenge. They showed particular concern that the categories of information, devised by the attorney general, compel X to disclose information it doesn’t want to.
“How is it not a compulsion when the state is saying, your terms of service may be what they are, but we also want you to tell us about these controversial topics?” Judge Anthony Johnstone, an appointee of President Joe Biden, asked Boutin.
Judge Milan Smith, appointed by President George W. Bush, said at the hearing that California “is saying, you must tell us basically what you think about each of these things, and if you don’t, you have to tell us that, too. Why is that not compelled speech?” Smith asked. “Here you're compelling people to say things that they may or may not want to talk about at all.”
X sued California last year, arguing the measure is a violation of the First Amendment, in one of several free speech suits the company has filed since being taken over by Elon Musk. After a lower court judge rejected the argument, X appealed the ruling.
Musk has proven that he’ll spare no expense trying to get his way in court, and his legal campaign against Assembly Bill 587 is no exception. X’s lawyer in the case, Joel Kurtzberg, is a partner at the New York law firm of Cahill Gordon & Reindel, where famed First Amendment lawyer Floyd Abrams serves as senior counsel. (Abrams defended the New York Times in the Pentagon Papers case.)
Kurtzberg nimbly argued the X’s case before the 9th Circuit – an easier task, of course, when you’ve got a sympathetic audience.
First Amendment lawyers like Abrams have built their reputations exposing the truth. Especially as Musk has started using X to promote Trump, Cahill Gordon & Reindel could deploy its considerable talents to defend vulnerable people, especially youth, from damaging, false, or bad-faith content in a highly unregulated online space. Instead, they appear to be helping X crush even the tiniest first step towards requiring social media companies to reveal what they’re doing about the disinformation they traffic in.
McBrien, the lawyer at EPIC, said that through their collection and use of personal information, social media platforms possess unparalleled influence in shaping our understanding of society. Yet, despite their power, too little is known about how the companies operate, he said, leaving users and lawmakers in the dark when trying to figure out which platforms to use and how best to regulate them.
The ruling is “a blow to internet users’ and society’s ability to understand how online platforms are operating,” he said.
Editor's note: This story was updated 12:40 p.m. on Sept. 4, 2024 to include a response from California Attorney General Rob Bonta’s office.
