• by Wendy Davis  @wendyndavis, March 14, 2024

California Attorney General Rob Bonta is asking a federal appellate court to reject X Corp's challenge to a new state law that requires large social media platforms to disclose their editorial policies.

In papers filed Wednesday with the 9th Circuit Court of Appeals, Bonta's office argues that even though the law (AB 587) compels speech, it doesn't violate the First Amendment because the matters that must be disclosed are “purely factual and uncontroversial.”

“Nothing in AB 587 requires social media companies to disclose individual users’ identities, information, or the substance of their specific posts,” Bonta's office argues. “Nor does AB 587 dictate the substance of social media companies’ terms of service or related policies, or control the actions that social media companies may take (or decline to take) against any item of content or user.”

AB 587, signed last year, requires large social media platforms to post information about their content moderation policies, and provide semiannual reports to the state attorney general about enforcement. Those reports are supposed to include information about whether and how the companies define and handle material such as “hate speech” and “disinformation.”

The law also allows the attorney general to seek penalties of up to $15,000 a day from a platform that “materially omits or misrepresents” its policies.

X (formerly Twitter) sued to block the law last year, arguing that the statute unconstitutionally interferes with private companies' editorial judgments about how to handle speech that's protected by the First Amendment.

The company argued that even though the state touts the law as a “transparency” measure, the legislature intended to pressure platforms to suppress speech that's protected by the First Amendment. In general, the First Amendment prohibits the government from attempting to suppress lawful speech -- including speech that's racist, sexist, or otherwise objectionable.

Late last year, U.S. District Court Judge William Shubb in Sacramento rejected X's request to block enforcement. He said in a written decision that the law appears to place a “substantial burden” on social media companies, but that it was not “unjustified or unduly burdensome within the context of First Amendment law.”

Shubb wrote that the mandatory disclosures were “reasonably related to a substantial government interest in requiring social media companies to be transparent about their content moderation policies and practices so that consumers can make informed decisions about where they consume and disseminate news and information.”

X has appealed that decision to the 9th Circuit, arguing that the law unconstitutionally “compels X Corp. to engage in controversial speech against its will,” and “impermissibly interferes with X Corp.'s constitutionally protected editorial judgments about what content may appear on its social media platform.”

The company also disputes that the law disclosures required by the law concern only factual and uncontroversial matters.

X essentially argues that policies regarding content moderation are in themselves controversial, and not comparable to the kind of commercial information that courts have required companies to disclose -- such as information about prices or fees.

“What the state euphemistically refers to as a 'transparency measure' in fact has the purpose and effect of compelling X Corp. to take positions on some of the most controversial topics of the day-what constitutes hate speech, racism, misinformation, and so forth,” the company argued in papers filed last month with the 9th Circuit.

The company adds that a provision allowing for sanctions against a company that “materially omits or misrepresents” its policies is too vague, and will effectively empower the attorney general to pressure platforms into changing their editorial decisions.

Bonta's office counters that arguments regarding possible sanctions over misrepresentations are premature, arguing that X hasn't alleged it is currently subject to threat of “imminent” prosecution.

A broad array of outside groups -- including the U.S. Chamber of Commerce, Reporters Committee for Freedom of the Press and Electronic Frontier Foundation -- are backing X's appeal.

The Chamber of Commerce wrote in a friend-of-the-court brief filed last month that the California law “reflects a growing trend of government interference in the private editorial judgments of businesses that operate on the internet.”

The business organization added: “These unlawful efforts significantly affect the Chamber’s membership, including social media companies, businesses that rely on social media platforms to reach interested consumers, and other companies that participate in today’s vibrant online economy.”