(The Center Square) – A federal appeals court sided with Elon Musk and X Corporation against a California law requiring companies to report and create definitions for a wide variety of speech violations, finding the law violates the First Amendment by unlawfully compelling companies to provide opinions on contentious matters, including defining what hate speech or misinformation is.
The Ninth Circuit Court reversed a lower district federal court’s ruling initially in favor of California, and instructed the district court to enter a preliminary injunction on portions of the law, AB 587.
AB 587, signed into law in 2022, was marketed as a transparency-oriented measure to have social companies make their content moderation policies and statistics available in public reports filed with the California Attorney General starting in January of 2024. The law requires social media companies to create and define moderation categories for hate speech, racism, extremism, radicalization, disinformation, misinformation, harassment and foreign political interference. Companies would have to explain how their policies address content in these categories, share how much content was flagged and acted upon, and how much this content was viewed and shared, with companies that fail to comply required to pay fines of up to $15,000 per day and potential other civil penalties if the California Attorney General files suit.
AB 587 author Assemblymember Jesse Gabriel, D-Encino wrote the bill will ensure “social media companies moderate or remove hateful or incendiary content on their platforms,” and that he hopes the bill will “pressure them” to “eliminate hate speech and disinformation.”
In the original September lawsuit, X said the law would “pressure social media companies to eliminate or minimize content that the government has deemed objectionable.”
A district court judge upheld AB 587 in December, claiming the reporting requirements were “purely factual” and the law does “does not provide for any potential liability stemming from a company’s content moderation activities per se.”
The Ninth Circuit’s ruling focused on the requirement for content category reports and definitions, finding the reports were tantamount to requiring companies to give opinions on contentious issues.
“In effect, the Content Category Report provisions compel every covered social media company to reveal its policy opinion about contentious issues, such as what constitutes hate speech or misinformation and whether to moderate such expression,” wrote the Ninth Circuit.
“Insight into whether a social media company considers, for example, (1) a post citing rhetoric from on-campus protests to constitute hate speech; (2) reports about a seized laptop to constitute foreign political interference; or (3) posts about election fraud to constitute misinformation is sensitive, constitutionally protected speech that the State could not otherwise compel a social media company to disclose without satisfying strict scrutiny,” continued the ruling.
The court’s order for an injunction applies only to the sections relating to defining and reporting data on content violation categories. Social media companies will still be under the remainder of AB 587’s requirements, which include semi-annually creating publicly viewable reports to California on the current terms of service, how automated systems enforce the terms of service, how companies respond to user-reported violations, and what actions the companies take against violators.
