The US Court of Appeals for the Ninth Circuit has granted a partial preliminary injunction in the X Corp. v. Bonta case, which concerns some provisions from California’s online censorship (“moderation”) law, AB 587.
In explaining the ruling, the court said that X Corp. is “likely to succeed in showing that the Content Category Report provisions facially violate the First Amendment.”
The law, introduced by 10 Democrats and one Republican in the state legislature and later adopted, mandates that large social media companies must report to California’s attorney-general regarding the details of their “moderation” apparatus. These companies are required to submit “Content Category Reports” twice a year.
The reports should include statements regarding whether the companies’ terms of service define hate speech or racism, extremism or radicalization, disinformation or misinformation, harassment, and foreign political interference; if that is the case, the authorities want to know what those definitions are.
The irony of many laws dealing with the same subjects failing to properly define these categories aside, but the court of appeals judges found that this was one of the provisions that likely violated the First Amendment, therefore granting an injunction against it, and several other portions of AB 587 (under section 22677).
Another part of the law that saw the same fate relates to large social media platforms submitting a detailed description of their “moderation policies, and information about flagged content” when it comes to the same categories of speech (hate speech, racism, etc.)
The Ninth Circuit in this way reversed a previous decision by a district court not to grant a preliminary injunction – which is a temporary block until the courts decide on the merits of the case.
We obtained a copy of the opinion for you here.
The panel of three judges found that Content Category Reports are not commercial speech, which “does no more than propose a commercial transaction.”
But in this case, even though social media companies’ terms of service (TOS) can be considered to be commercial speech – their presenting opinions and reasons behind the TOS, “are different in character and kind,” the ruling said.
The Content Category Report provisions “would require a social media company to convey the company’s policy views on intensely debated and politically fraught topics, including hate speech, racism, misinformation, and radicalization, and also convey how the company has applied its policies,” the ruling reads.
The appellate court also rejected the state’s claim that these requirements are “only” a transparency measure and therefore “subject to lower scrutiny.”
However, the judges write, “But even if the Content Category Report provisions concern only transparency, the relevant question here is: transparency into what? Even a pure ‘transparency’ measure, if it compels non-commercial speech, is subject to strict scrutiny. That is true of the Content Category Report provisions.”
