Lawsuit Challenges New California Law that The Plaintiffs’ Allege Violates Their First Amendment Rights to Free Speech: Minds, Inc., et al. v. Robert A. Bonta

The current efforts to censor speech on social media platforms is possibly the largest censorship effort in American history.  The extensive array of players in this censorship effort (recently dubbed the “Censorship Industrial Complex”) include federal agencies, private organizations (some of which have links to federal agencies), certain social media companies themselves and some state governments.  Elon Musk’s buying Twitter seems to have added gasoline to this fire.  This censorship campaign included government entities, government-affiliated and/or funded groups and advocacy groups creating lists of individuals and accounts that social media companies should blacklist from their platforms.  One infamous effort was directed at advertisers with the goal of having advertisers boycott the identified companies.

Some state governments have also jumped into this effort.  These states have, so far, not demanded outright censorship through legislation.  Given that direct efforts to censor speech would almost certainly run afoul of the First Amendment, these states have tried indirect methods.  One such method is the enactment of so-called transparency laws that require social media platforms to publish content moderation policies and to put into place mechanisms for processing complaints concerning various types of speech.  New York State enacted such a law (its Hateful Conduct Law), and that law was recently enjoined by a federal district court on the ground that there existed a substantial likelihood that the Hateful Conduct Law violated the First Amendment.

California has also joined the fray with its recently enacted AB 587, which is now being challenged in federal court by the Babylon Bee, Minds, Inc. and Tim Pool.  The Babylon Bee has become an icon in this fight for freedom of speech.  Twitter’s suspending the Babylon Bee’s Twitter account is widely credited as being the final straw that prompted Elon Musk to purchase Twitter.  The Babylon Bee has been constantly attacked as spreading misinformation, despite its clearly stated status as a satire website.

The Plaintiffs allege[1] that AB 587 was enacted in order to increase the censorship of viewpoints disfavored by politicians in California.  The Plaintiffs allege that AB 587 “requires social media companies to engage in some form of content moderation.”  Under AB 587, social media platforms must post their “terms of service,” which must contain, among other things: “A description of the process that users must follow to flag content, groups, or other users that they believe violate the terms of service, and the social media company’s commitments on the response and resolution time,” and a “list of potential actions the social media company may take against an item of content or a user, including, but not limited to, removal, demonetization, deprioritization, or banning.”

AB 587 goes on to mandate that social media companies prepare a “terms of service report” and provide that report to the California Attorney General.  The terms of service report must contain a “statement of whether the current version of the terms of service defines each of the following categories of content, and, if so, the definitions of those categories.” These covered definitions include terms such as “hate speech or racism,” “extremism or radicalization,” “disinformation or misinformation,” “harassment,” and “foreign political interference.”  AB 587 goes on to require “information on content that was flagged by the social media company as content belonging to any of the categories described . . .”  The type of information social media companies must collect is extensive, including, for example: “the total number of flagged items of content,” “[t]he total number of actioned items of content that were removed, demonetized, or deprioritized by the social media company,” and [t]he number of times actioned items of content were shared, and the number of users that viewed the content before it was actioned.”  Social media companies face potentially significant fines if they fail to properly report the data requested.

AB 587 appears to compel speech by the social media companies with respect to “content moderation,” which is a euphemism for censorship.  This is the reason New York’s Hateful Conduct Law was enjoined by a federal district court in New York.  It is unclear from the complaint that the Plaintiffs challenging AB 587 intend to pursue this legal argument.

The Plaintiffs allege that the intent behind AB 587 is to force social media companies to create a procedure through which individuals and organizations can flag messages and posts that they believe are problematic in some way.  It is unclear whether AB 587 requires social media companies to include in their terms of service prohibitions on messages or posts that contain “hate speech or racism,” “extremism or radicalization,” “disinformation or misinformation,” “harassment,” and “foreign political interference.”  If a social media company does prohibit anything close to these topics, AB 587 mandates that the social media company define those terms and then track complaints about posts that fall within any of those definitions.  If a social media company fails to properly track and record such complaints, it could face significant fines and a costly investigation.

The State of California could use its enforcement power under AB587 to pressure social media companies to censor speech that government officials in California find offensive.  A social media company could find itself faced with lengthy and possibly very costly investigations and fines if it does not increase its censorship efforts to the level demanded by state officials.  Further, users of social media platforms may have concerns that the reporting obligations under AB 587 could lead to their being doxed and targeted, which will further inhibit free speech on social media platforms.  Given the apparent intent behind AB 587, such concerns appear to be warranted.

[1]  The Complaint contains allegations that have not been proven in court at this point, and constitute allegations made by the Plaintiffs.  This blog post is reporting on the allegations made by the Plaintiffs and is not affirming the accuracy of those allegations or speculating as to the Plaintiffs’ ability to meet their burden of proof in the litigation.