18 Democratic AGs Urge 9th Circuit to Uphold Calif. Social Media Disclosure Law

The district court “correctly reviewed” and upheld AB-587, California’s social media disclosure law, under the U.S. Supreme Court’s 1985 decision in Zauderer v. Office of Disciplinary Counsel, said an amicus brief Wednesday (docket 24-271) at the 9th U.S. Circuit Court of Appeals from the Democratic attorneys general of 17 states and the District of Columbia.

The brief urges the 9th Circuit to affirm the U.S. District Court for Eastern California’s denial of X’s injunction to block California AG Rob Bonta (D) from enforcing AB-587.

Courts should adopt and apply the proper standards when confronted with constitutional challenges to state disclosure provisions, said the brief. In Zauderer, the Supreme Court held that, in certain circumstances, laws that compel factual, commercial speech “are reviewed under a less exacting form of First Amendment scrutiny,” it said.

The district court correctly held that the Zauderer standard governs X’s First Amendment challenge to AB-587, said the brief. Even assuming that the Zauderer test applies to commercial-speech disclosures only, “the underlying speech here is commercial,” it said. As courts have repeatedly held, commercial speech “sweeps in more than just advertisements,” it said.

Instead, speech that pertains to a commercial good “may also qualify as commercial,” said the brief. “That fits this case perfectly,” it said. AB-587 requires only social media companies with at least $100 million in annual revenue to semiannually produce a terms of service (TOS) report with information about their content-moderation policies and practices, “the very sort of information that could bear on informed consumer choices,” it said.

The TOS reports that AB-587 requires “entail disclosure of purely factual and noncontroversial information,” said the brief. The information that AB-587 requires “simply describes social media companies’ voluntarily adopted content-moderation policies,” it said. AB-587 doesn’t compel platforms “to develop definitions where none exist, or to modify existing ones,” it said.

While consumers may disagree about which policies are desirable, or whether a company has consistently and effectively implemented its policy, “what policy a company has adopted and what actions it has taken to implement that policy are not themselves controversial questions,” said the brief: “They are descriptive, empirically verifiable facts.”

AB-587 “plainly survives” the Zauderer test, and would survive “any level of scrutiny,” said the brief. To begin, AB-587 advances substantial, compelling state interests “in ensuring that social media platforms’ content-moderation policies and practices are transparent to consumers, including to parents,” it said.

For many, social media is “an inextricable part of daily life and an invaluable source of information,” said the brief. But it also carries risks, “particularly for children, who are among social media’s most active users,” it said. Different platforms will naturally have different views about what kinds of content are or aren’t harmful, “and take different approaches to defining and restricting those kinds of content,” it said. Enabling consumers to inform themselves about platforms’ own content-moderation processes “enables consumers to make the best decisions for themselves and for their children,” it said.

AB-587 is appropriately and narrowly “tailored to those interests,” said the brief. By requiring the largest social media companies to disclose the same information about their internal policies and operations, the law “makes it possible for consumers to draw meaningful comparisons between them,” it said. Hoping that companies will voluntarily disclose all the same information “plainly cannot suffice,” it said.

AB-587 also isn’t “unduly burdensome,” said the brief. The undue-burden analysis doesn’t turn “on the dollar value of compliance costs, but rather on whether the challenged law creates a sufficiently serious risk of chilling speech,” it said. AB-587 doesn’t do so, it said. Nothing in the TOS reports “impinges on, or threatens to crowd out, the social media companies’ speech,” it said: “Nor, even if it were a relevant factor, does the law run a risk of chilling user speech.”