In 2023, California enacted a social media content moderation law commonly known as AB 587. The law has been codified at Cal. Bus. & Prof. Code § 22675 et seq. and has no specific statutory name. We will refer to the law as “AB 587” herein.
Shortly after enactment, the company formerly known as Twitter — now X Corp. — filed a lawsuit in California federal asking that AB 587 be held unconstitutional on First Amendment free speech grounds. X Corp v Bonta (U.S. District E.D. Cal. Dec. 28, 2023). X Corp. lost in the lower courts. See the news report here.
The first question addressed by the federal court was how to characterize the requirements of AB 587. AB 587 has two basic elements:
- Disclosure and posting to the California Attorney General’s Office a company’s current Terms of Services annually, along with posting the same twice a year and
- Mandated annual terms of service moderation reports
The federal court summarized what the annual terms of service moderation reports require as follows:
“The law also requires that such companies submit twice yearly “terms of service reports” to the Attorney General containing, inter alia, the current version of the terms of service for their platform, as well as a description of content moderation practices used by the social media company for that platform, including, but not limited to, how the company addresses (A) hate speech or racism; (B) extremism or radicalization; (C) disinformation or misinformation; (D) harassment; and (E) foreign political interference.”
With respect to these two categories, the court stated that its first task was to decide what type of speech is being impacted. Generally, free speech principles prohibit governments from interfering with the ability to speak but also prohibit forcing persons to speak. X Corp essentially argued that it was being forced to speak in violation of the First Amendment. Note further that free speech doctrines also distinguish commercial speech and what we might call “regular speech.” Commercial speech is generally entitled to less protection.
In resolving the question of X Corp being “forced” to speak, the court concluded that the speech in question was commercial in nature. From there, the court applied the more lenient court and legal precedents and held that the posting of terms of service requirement and the requirement of providing the terms of service moderation reports were constitutionally permissible under the First Amendment. X Corp is now appealing to the 9th Circuit Court of Appeals. At least according to one news report, the three-judge panel was more supportive of the arguments being made by X Corp.
In the meantime, the Supreme Court of the United States (“SCOTUS”) issued a decision related to similar statutes enacted in Florida and Texas. See NetChoice, LLC v. Moody. The Florida and Texas laws are different from California’s AB 587 in that those statutes sought to directly limit social media companies from censoring or using social media moderation based on the content of the social media posts. California’s AB 587 is more of a notice law. That is, AB 587 says, “show us your Terms of Service and tell us what you’ve done.” Thus, NetChoice may not have a direct bearing on the constitutionality of AB 587.
That being said, while SCOTUS did not rule on the validity of the Florida and Texas statutes, SCOTUS did express some views that may impact the case by X Corp. Among other things, SCOTUS noted that, when engaging in content moderation, social media platforms are, in fact, engaging in their own “expressive conduct” entitled to protection under free speech constitutional principles. The impact NetChoice will have on X Corp v Bonta has yet to be determined.
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