X argues that the California social media law disrupts the exercise of editorial discretion.
The challenge posed by a major social media platform to a recent California law regarding content moderation prompts a straightforward query: Which forms of speech can be classified as hateful?
Legal experts say that the answer to this question involves First Amendment considerations, which may soon be brought before the Supreme Court.
X, formerly known as Twitter, this month filed a federal lawsuit arguing that California Assembly Bill 587 infringes on free speech. The law requires media companies to post terms of service about how they handle certain content and inform the government about how they are moderating certain content.
The lawsuit alleges that the legislation unlawfully disrupts the constitutionally safeguarded editorial decisions made by companies like X Corp.
Rebecca Tushnet, a professor at Harvard Law School, argues that the requirement to disclose speech policies may excessively impede editorial judgment.
X’s challenge is a significant assertion, according to Kyle Langvardt, a law professor at the University of Nebraska-Lincoln.
He stated that media companies are obligated to provide specific information, as outlined by California law, regarding certain types of speech, such as harassment. These companies are also required to disclose their approach to addressing harassment and may face penalties if they fail to include or provide inaccurate information.
Mr. Langvardt stated that the ability to impose these fines may give prosecutors the authority to influence platforms into altering their policies on content enforcement.
The California attorney general’s office spokesperson expressed enthusiasm in protecting the law.
The spokesperson expressed anticipation for advocating for this logical law in the court. The law mandates social media companies, earning a minimum of $100 million in annual gross revenues, to publicly reveal details about their policies for moderating content.
Various disclosure requirements have also been implemented in Texas, Florida, and New York.
New York had a Hateful Conduct Law requiring social media companies to allow users to file complaints over hate speech and requiring the companies to implement a policy on how to handle hate speech.
The implementation of the law was halted by a federal court this year, as it was deemed to violate freedom of speech by punishing hate speech, which is safeguarded by the First Amendment.
Lawmakers in Texas approved a legislation in 2021 that forbids social media companies from deleting or regulating content that may be considered offensive or hateful by some individuals. Additionally, these companies are obligated to reveal specific business procedures, including the utilization of algorithms.
Certain provisions of the law were halted by a federal court in Texas. The ruling was later overturned by the 5th U.S. Circuit Court of Appeals, but the injunction remains in effect until further review.
In 2021, a law was passed in Florida imposing a daily fine ranging from $25,000 to $250,000 on major social media companies that remove political candidates from their platforms.
The law was prevented from being enforced by the U.S. District Court and 11th U.S. Circuit Court of Appeals due to concerns regarding the First Amendment.
The challenges from Texas and Florida are currently awaiting a decision from the Supreme Court. The justices will discuss whether to address these challenges during their private conference on September 26, which is not accessible to the public.
Four justices need to vote in favor of hearing the disputes in order for oral arguments to take place.
The Justice Department has stated that the differing decisions from the 5th and 11th Circuits indicate that the Supreme Court should consider reviewing the cases and determining whether the laws violate the First Amendment rights of both the companies and users.
“In the federal government’s filing, Solicitor General Elizabeth Prelogar stated that the content-moderation activities of the platforms are safeguarded by the First Amendment. However, she argued that the requirements for content-moderation and individualized-explanation impose an unacceptable burden on these protected activities.”
NetChoice, a lobbying organization dedicated to preserving internet freedom, is spearheading the legal challenge in both petitions filed with the high court.
The group issued a press statement this month, claiming that California’s regulations for social media companies are a form of censorship disguised as a transparency law, which they consider to be overly assertive.
Chris Marchese, director of litigation for NetChoice, stated that the First Amendment prevents the government from regulating legal speech, whether it be done directly or indirectly. He also emphasized that states cannot bypass this restriction by disguising censorship as “transparency” requirements.
The lawsuit, X Corp. v. Bonta, was given to U.S. District Judge William B. Shubb, who was appointed by George W. Bush for the Eastern District of California.