Calif. Social Media Transparency Law ‘Squarely Violates’ First Amendment: US Chamber

California’s social media transparency law, AB-587, “reflects a growing trend of government interference in the private editorial judgments” of businesses that operate on the internet, said the U.S. Chamber of Commerce in an amicus brief Wednesday (docket 24-271) at the 9th U.S. Circuit Court of Appeals in support of X’s appeal to block California Attorney General Rob Bonta (D) from enforcing it (see 2401160031).

The states’ “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,” said the brief. The 9th Circuit should hold that AB-587 “squarely violates the First Amendment,” it said.

AB-587 compels social media companies to provide the California AG “with detailed information about whether and how they define and moderate categories of content that California thinks objectionable,” said the brief. By requiring private companies to broadcast their views on issues California has deemed important, AB-587 “compels speech in violation of the First Amendment,” it said.

Because AB-587’s disclosure requirements are designed to “unconstitutionally pressure” companies into aligning their protected editorial discretion with California’s content-based judgments, “it also operates as a speech restriction,” said the brief. Whether viewed as a compulsion or a restriction, AB-587’s content- and viewpoint-based speech regulations “are subject to strict scrutiny,” not to the lesser standard the U.S. Supreme Court has reserved “for the narrow circumstance in which the government requires companies to add uncontroversial factual statements to otherwise misleading commercial advertisements,” it said. AB-587 can't satisfy any form of First Amendment review because it doesn’t further “a substantial state interest and is unjustified and unduly burdensome,” it said.

AB-587's “terms of service” disclosure requirement regulates private companies’ speech in two “equally problematic ways,” said the brief. First, the law compels private companies to speak publicly on controversial topics. Second, the law is designed to force private companies “to exercise their editorial discretion in a way that California lawmakers see fit,” it said. Laws aimed at compelling or restricting speech in this manner “strike at the core of the First Amendment,” it said.

AB-587 compels speech by forcing social media companies to report their content-moderation policies, “and to do so using categories created by the government,” said the brief. The contents of these reports are “undoubtedly controversial,” it said. Millions of Americans post and access content on social media platforms every day, it said.

Platforms must make “weighty decisions” about how to organize and, sometimes, to remove user-generated posts, said the brief. Reasonable minds can, and do, “vigorously disagree on what categories of content should be regulated, how those categories should be defined, and the degree of moderation to which they should be subject,” it said.

AB-587 burdens and restricts the platforms’ “protected editorial judgments,” said the brief. Though the statute isn’t “so bold” as to completely ban particular judgments, “it nevertheless imposes content- and viewpoint-based burdens restricting them,” it said.

The statute identifies broad content-based categories of protected speech “as potentially dangerous enough to merit action” and then requires the platforms “to describe whether and how their content-moderation policies address those categories,” said the brief. In so doing, AB-587 imposes content- and viewpoint-based burdens “interfering with social media platforms’ constitutionally protected independent editorial judgments,” it said.