The Ninth Circuit Court of Appeals has held that California’s social media content reporting law violates free speech and is, therefore, unconstitutional. X Corp v Bonta, Case No. 24-271 (9th Cir. 2024). See the news report here.

In 2023, the California State Assembly passed a law — Assembly Bill 587 — that required social media companies to post their Terms of Service Agreements with the California Attorney General’s Office and to also provide — every six months — reports to the AG’s Office on the platform’s content moderation policies and practices. For example, social media companies were required to submit reports describing how the company defined and moderated things like hate speech, racism, extremism, radicalization, disinformation, misinformation, harassment, and/or foreign political interference. As another example, the content moderation reports were also required to provide statistical information such as the total number of flagged and actioned items of content, the number of content removed, demonetized, or deprioritized, how many times flagged content was viewed and shared by users, how many times flagged content was viewed before being flagged, etc.

AB 587 was challenged by X Corp. (formerly known as Twitter). Among other things, X Corp. argued that AB 587 was a violation of free speech constitutional protections since the legislation required coerced speech. The First Amendment bans restrictions on free speech and also prohibits governments from coercing speech. X Corp. lost its case at the lower level but then appealed to the federal Ninth Circuit Court of Appeals. As noted above, the 9th Circuit panel of judges has sided with X Corp., has reversed the lower court, and has sent the case back for further proceedings.

The key legal question concerned whether AB 587 required social media platforms to engage in regular or commercial speech. Everyone involved agreed that AB 587 required some sort of compelled or coerced speech. The lower court determined that the speech involved was commercial speech. As such, a more lenient legal standard was applied. Under that more lenient standard, AB 587 was held to be constitutional.

However, the 9th Circuit concluded otherwise. The speech was not commercial under the legal precedents. For example, the content moderation reports were not directed at consumers, did not mention or relate to pricing, and did not welcome consumers to purchase a product or service. Further, the content category reports did not merely ask for information but required “… a company to recast its content-moderation practices in the language prescribed by the state, implicitly opining on whether and how certain controversial categories of content should be moderated.”

Once the 9th Circuit determined that the coerced speech in question was not commercial, a very high legal standard was used. In the end, the 9th Circuit stated that California’s statute could not satisfy those high standards.

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