The U.S. Court of Appeals for the Ninth Circuit just slapped down parts of a controversial California law imposing free speech-busting reporting requirements on social media platforms like X and Facebook.
California's AB 587 was hailed by Gov. Gavin Newsom and Attorney General Rob Bonta as ensuring “social media transparency," but the Ninth Circuit Court ruled for the plaintiff — X — dismissing the law's reporting requirements "with prejudice."
Loosely translated, that means, "Don't try anything else like that again, Bub."
Under AB 587, social media platforms with more than $100 million in annual revenue are required to disclose their content moderation policies and submit semiannual reports to AG Bonta "on categories like hate speech, disinformation, and harassment, detailing flagged content, enforcement actions (e.g., removals), and detection methods," according to one summary.
Free speech advocates argued that AB 587's reporting rules amounted to "censorship by proxy," and the Ninth apparently agreed. I'd strongly agree with the court. When you're required to report to the state attorney general each year what kind of content you're squashing — and what content you're allowing — politics can't help but come into the decision-making process. Particularly when A) the state has already established a firm regulatory hand ("Nice platform you've got there; be a shame if anything happened to it.") over social media, and B) the penalties go up to $15,000 per day per violation.
Those penalties could quickly snowball on any so-called "infraction" that went viral.
And Another Thing: I'm still waiting to see what happens to California's other "Out, damn free speech!" law, AB 2655. That one outlawed "materially deceptive content" about candidates and election officials for 120 days before an election. The example that Newsom highlighted on X had "PARODY" slapped on it in great big letters, as I reported at the time. The Babylon Bee sued over AB 2655, but there hasn't yet been a ruling.
"Forcing a private entity to define terms like ‘hate speech’ or ‘disinformation’ and report how it polices them is not akin to listing ingredients on a cereal box," the Ninth ruled, "it’s a mandate to articulate a position on contested societal issues."
Three more juicy items from the ruling:
- "Social media companies, like newspapers, have a First Amendment right to decide what to publish and what to remove—AB 587’s requirements tread heavily on that autonomy, pressuring platforms to conform their moderation to the state’s preferred narrative."
- "We hold that the reporting provisions of AB 587 violate the First Amendment by compelling speech that goes beyond factual disclosure and into the realm of editorial judgment, without a sufficiently compelling justification to survive scrutiny."
- "Transparency is a laudable goal, but the state cannot wield it as a cudgel to extract speech from private entities under the guise of consumer protection."
That's pretty much the appeals court version of pimp-slapping Newsom and Bonta. I hope it stings.
Mario Nawfal noted that "No other platform challenged the law, but X stood alone and won."
So those other platforms — I'm looking at you, Instagram, Facebook, BlueSky, Threads, etc. — need to answer a question: What business are you in, anyway? Because from my vantage point, you appear too cowardly in the face of unconstitutional state power to be trusted as any kind of communication medium.
Recommended: You Won't Believe What's Coming to Texas
P.S. Thanks so much for reading. If you'd like to join some of the smartest voices on the internet in our Virtually Troll-Free™ comments section — plus access to exclusive essays, podcasts, and video live chats with your favorite writers — consider becoming a VIP member with this 60% off FIGHT promo code. Nice, eh?
Join the conversation as a VIP Member