Elon Musk’s social media giant X, formerly known as Twitter, is challenging the constitutionality of a California law that the company argues infringes its free speech rights, taking legal action against California.
California Assembly Bill 587 (AB 587) allows the state to dictate to X, and other large social media companies, with respect to their terms of service, requiring the platforms to include terms related to content moderation. A second provision of the law requires X to submit semi-annual “terms of service reports” to the California attorney general.
These reports need to include detailed descriptions of content moderation practices, information about how the company defines and moderates various categories of content (such as hate speech, extremism, disinformation, harassment, and foreign political interference), as well as statistics on actions taken to moderate these categories of content.
In a lawsuit filed in Sacramento on Sept. 8, X argued that AB 587, which was signed into law a year ago by Gov. Gavin Newsom, a Democrat, infringes on the company’s free speech rights under both the First Amendment to the U.S. Constitution and Article I, Section 2, of the California Constitution.
X contends that the law violates its First Amendment right to “not speak about controversial topics” and self-determine what it will and won’t say on such topics.
California has described AB 587 as a “transparency measure” designed to make content moderation policies and statistics publicly available. The law’s supporters deem it a measure to combat online hate and keep social media companies accountable for content that users post.
However, X disputes California’s characterization, pointing to legislative history and statements from the law’s author, sponsors, and supporters as evidence that the law’s alleged true intent, in the company’s view, is to pressure social media platforms to “eliminate” certain constitutionally protected content.
The lawsuit cites a quote from a California Assembly Committee on Judiciary Report for the 2021–2022 session, dated April 27, 2021, which states: “If social media companies are forced to disclose what they do in this regard [i.e., how they moderate online content], it may pressure them to become better corporate citizens by doing more to eliminate hate speech and disinformation.”
Additionally, X argues that the law violates the dormant commerce clause by placing an undue burden on interstate commerce, as its reporting requirements extend beyond California residents and are intended to have “national implications.”
The lawsuit also claims that AB 587 conflicts with the immunity provided to social media companies under Section 230 of the U.S. Code, which shields providers and users of interactive computer services from liability for actions taken in good faith to restrict access to objectionable material.
The law’s author, California assembly member Jesse Gabriel (D-Encino), responded on Sept. 8 to the news of X’s lawsuit.
Disputing the lawsuit’s claims, Mr. Gabriel said the law doesn’t require specific moderation policies, just reporting on those companies’ moderation activities.
Tech industry groups have also expressed their disapproval of the law following its approval. Additionally, several legal scholars have voiced concerns about its potential violation of First Amendment rights.
When he first signed the law, a defiant Mr. Newsom said in a statement that California won’t “stand by” as social media platforms that are “weaponized to spread hate and disinformation threaten our communities and foundational values as a country.”
“Californians deserve to know how these platforms are impacting our public discourse, and this action brings much-needed transparency and accountability to the policies that shape the social media content we consume every day,” he said.
In its lawsuit, X seeks declaratory relief and both preliminary and permanent injunctive relief to prevent AB 587’s enforcement.
