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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Compelled Speech Doctrine: The Legal Foundation of X Corp’s Win

The compelled speech doctrine — established in cases like Wooley v. Maynard, 430 U.S. 705 (1977) and Barnette v. West Virginia Board of Education, 319 U.S. 624 (1943) — holds that the First Amendment prohibits government from compelling individuals or entities to express messages they would not otherwise express. The principle applies with full force to corporations, as the Supreme Court confirmed in Janus v. AFSCME, 585 U.S. 878 (2018) (finding that compelling public employees to subsidize union speech violated the First Amendment). In the commercial context, there is a carve-out for purely commercial speech compelled for informational purposes — the legal basis that California argued applied to AB 587 — but that carve-out has a narrow scope.

The lower court in X Corp. v. Bonta applied commercial speech analysis to AB 587, reasoning that the content moderation reports were essentially informational disclosures analogous to product labels or ingredient disclosures that businesses can be required to provide without triggering strict First Amendment scrutiny. The Ninth Circuit rejected that reasoning. The content moderation reports were not merely informational; they required X Corp. to characterize its own editorial policies using the state’s prescribed vocabulary — defining whether certain content was “hate speech,” “misinformation,” or “radicalization” in accordance with government-defined categories. That is not commercial disclosure; it is coerced editorial expression.

Commercial Speech vs. Protected Speech: The Critical Distinction

The Ninth Circuit’s analysis in X Corp. v. Bonta turned on the distinction between commercial speech — which receives intermediate protection and can be compelled for purely informational purposes — and non-commercial speech, which receives full First Amendment protection and can only be restricted or compelled if the government satisfies strict scrutiny.

Commercial speech is speech that “does no more than propose a commercial transaction” — essentially advertising, pricing, and product information. The compelled disclosure cases that California cited as precedent involved things like caloric content on restaurant menus, country-of-origin labeling on food products, and health warnings on tobacco products. These disclosures are commercial in nature: they convey objective, factual information directly related to the consumer’s purchasing decision.

AB 587’s content moderation reports did not fit that mold. They required platforms to characterize their editorial policies, quantify their enforcement actions, and explain their moderation reasoning using the state’s categorical framework. The reports were directed at the Attorney General’s office, not at consumers, and they served no consumer transaction purpose. The Ninth Circuit concluded that requiring a company to produce regular reports explaining how it defines and enforces its editorial standards is quintessentially non-commercial speech — equivalent to requiring a newspaper to report to the government on its editorial policy choices.

What Moody v. NetChoice Added to the Framework

The U.S. Supreme Court’s decision in Moody v. NetChoice, 144 S. Ct. 2383 (2024), addressed Texas and Florida statutes that attempted to prohibit large social media platforms from engaging in “viewpoint-based” content moderation. The Court held that content moderation — including decisions to remove, demote, or refuse to carry certain content — constitutes protected editorial expression by the platforms. A platform’s decision about what content to show, how to rank it, and whether to carry it at all reflects editorial judgment entitled to First Amendment protection.

The Court also noted that the First Amendment protects the right not to speak, and that requiring a platform to carry content it would otherwise exclude is a form of compelled speech. This reasoning directly supports the Ninth Circuit’s analysis in X Corp. v. Bonta: if platforms have the right to make editorial choices about content moderation, the government cannot compel them to report those choices to a state agency using prescribed categories — doing so indirectly pressures the platforms to align their moderation policies with government-preferred definitions.

Implications for State Regulatory Approaches to Social Media

The combined effect of Moody, X Corp. v. Bonta, and the Ninth Circuit’s partial reversal of the CAADCA is a significant constraint on state legislative authority over social media platforms. States can regulate:

• Data privacy and security practices — collection, use, sharing, and retention of personal data, including children’s data, subject to commerce clause analysis
• Consumer contract terms and transparency about platform ownership, terms of service, and business practices in purely informational, non-editorial respects
• Advertising practices targeting specific categories of users, including minors, consistent with First Amendment commercial speech doctrine

States cannot constitutionally:

• Require platforms to carry content they have decided to remove
• Mandate content moderation policies or require that certain types of content be prioritized or deprioritized in particular ways
• Require platforms to submit reports characterizing their editorial choices using government-prescribed categories of harmful speech
• Penalize platforms for exercising editorial discretion in ways the state considers biased or unfair

The boundary between permissible data regulation and impermissible speech regulation will continue to be litigated as states enact new social media laws. For platforms and companies that operate social media products or applications, understanding where those boundaries are drawn is essential to evaluating regulatory compliance obligations and litigation risk. Contact the internet law and social media attorneys at Revision Legal through the form on this page or call (855) 473-8474.