Calif.’s AB-587 Makes Social Media Do Government’s ‘Dirty Work,’ Says Volokh Brief

California’s social media transparency law, AB-587, violates the First Amendment’s “stringent prohibition on viewpoint discrimination,” said UCLA law professor Eugene Volokh in a Feb. 21 amicus brief (docket 24-271) at the 9th U.S. Circuit Appeals Court. Volokh’s brief supports X’s appeal to reverse the district court’s denial of its injunction to block California Attorney General Rob Bonta (D) from enforcing AB-587 (see 2401190038).

Volukh is one of three plaintiffs to successfully sue New York AG Letitia James (D) to block her enforcement of New York’s hateful conduct law on First Amendment grounds. James is appealing to reverse the injunction that bars her from enforcing the statute (see 2310160001).

California’s AB-587 violates the First Amendment “by leaning on social media companies to do the government’s dirty work, either through fear of fine or public pressure,” said Volukh’s amicus brief. AB-587 “facially distinguishes certain viewpoints by requiring social media companies to define viewpoint-based categories of speech,” it said.

The law also requires social media companies to report their policies as to those viewpoints but not other viewpoints, plus “any actions they took to flag, moderate, deprioritize, restrict, or remove just those viewpoints on or from their platforms,” said the brief. The AG will make those reports public, it said.

The intent behind AB-587 “is clear from its legislative history,” plus comments by Bonta and common sense, said the brief. That intent “is to strongarm social media companies to restrict certain viewpoints,” it said. It does so by combining “law and public pressure” to do something about how platforms “treat those particular viewpoints, and not other viewpoints,” it said. That confirms that the facial viewpoint classification in the statute “is indeed a viewpoint-based government action aimed at suppressing speech,” and that violates the First Amendment, it said.

The “strongarming” comes from a combination “of a government-imposed disclosure requirement and the likely public reaction to that information,” said the brief. But the U.S. Supreme Court has made clear “that such combined schemes presumptively violate the Constitution,” it said.

The result is a law that’s “categorically barred” under the First and 14th amendments, “even without strict scrutiny,” said the brief. AB-587, alternatively, “at least triggers strict scrutiny,” which it can’t satisfy, it said. SCOTUS has repeatedly made clear that government has no compelling interest in censoring “even offensive and hateful views,” it said.

Whatever standard is applied, AB-587 “offends the Constitution,” said the brief. The First Amendment shields speech that the government disfavors, “not despite that disfavor but because of it,” it said. That constitutional protection “prevents the government from putting a thumb on the scale,” it said.