X (former Twitter) has not succeeded in its legal bid to block a controversial law in California.
The law is officially there to help regulate online content moderation, but the social network argued this piece of legislation is just a way to force platforms to censor speech that happens to be deemed as controversial by the authorities.
The legal battle concerns state law AB 587, signed by California Governor Gavin Newsom in 2022, while X Corp. now attempted to argue its case in terms of free speech (First Amendment) violations imposed by said law.
But a federal judge in California’s capital Sacramento did not accept this argument, saying instead that AB is above board. That same law mandating, critics say as a form of pressure, that platforms must tell the government how they are “moderating” whatever is considered to be hate speech, racism, harassment, disinformation, radicalism, extremism, and foreign political interference.
In addition, these platforms must then report to the authorities on how they are enforcing those rules.
Speaking of (indirect) pressure, one of the points the court’s decision makes is that AB 587 is not inconsistent with Section 230 – a part of the Communications Decency Act (CDA). This section is designed to give immunity to online platforms from liability related to third-party content, but also for removing that content under certain conditions.
Relevant to this, the ruling reads, “AB 587 only contemplates liability for failing to make the required disclosures about a company’s terms of service and statistics about content moderation activities, or materially omitting or misrepresenting the required information. It does not provide for any potential liability stemming from a company’s content moderation activities per se,” and adds:
“The law therefore is not inconsistent with section 230(c) and does not interfere with companies’ ability to “self-regulate offensive third party content without fear of liability.”
District Judge William Shubb stated that even if AB 587’s requirements “appear to place a substantial compliance burden on social media companies” – there’s, according to the judge, yet another thing that “appears” to be true, namely, “it does not appear that the requirement is unjustified or unduly burdensome within the context of First Amendment law.”
The essence of the court’s argument is to treat speech happening on X and other platforms as “commercial speech” (therefore not protected by the First Amendment) and this opinion is based on their own terms of service.
Wrote Judge Shubb: “Although the terms of service may not literally be advertisements in the sense of proposing a commercial transaction, they are directed to potential consumers and may presumably play a role in the decision of whether to use the platform.”
Lots of qualifiers there – by federal judge standards.
The are seemingly similar laws in Florida and Texas, in terms of their requirements from social media companies – but skewed toward preventing censorship, rather than reinforcing it, like in California.
The attempt to block those has gone all the way to the Supreme Court, which is expected to make a decision next year.
