X says California social media law ‘interferes with editorial judgment’

A social media giant’s challenge to a new California law on content moderation raises a simple question: What types of speech are hateful?

The question, which holds First Amendment considerations, could soon draw attention in the Supreme Court, legal experts say.

X filed a federal lawsuit this month arguing that California Assembly Bill 587 infringes on free speech. The law requires media companies to post terms of service about how they handle certain content and inform the government about how they moderate certain content.

The lawsuit claims the legislation “impermissibly interferes with the constitutionally protected editorial judgments of companies such as X Corp.”

“There’s a strong argument that this kind of disclosure requirement for speech policies interferes with editorial judgment too much,” said Rebecca Tushnet, a professor at Harvard Law School.

Kyle Langvardt, a law professor at the University of Nebraska-Lincoln, said X has made a “serious claim.”

He said the disclosures required under California law compel media companies to define certain speech, such as harassment. The companies also must report how they handle harassment and can be subject to fines if they omit or misrepresent anything.

“The power to seek these fines could potentially empower prosecutors to pressure platforms to change their content enforcement policies,” Mr. Langvardt said.

The California attorney general’s office is eager to defend the law, a spokesperson said.

“We look forward to fighting for this commonsense law in court, which requires social media companies with annual gross revenues of at least $100 million to publicly disclose information about their content-moderation policies,” the spokesperson said.

Texas, Florida and New York also have enacted various disclosure requirements.

New York had a “hateful conduct” law requiring social media companies to allow users to file complaints over hate speech and requiring the companies to implement policies on how to handle hate speech.

A federal court this year blocked enforcement of the law. The court reasoned that the law infringed on free speech rights protected under the First Amendment.

In Texas, lawmakers enacted a law in 2021 prohibiting social media companies from removing and moderating content that some might find offensive or hateful. It also required the companies to disclose certain business practices, such as the use of algorithms.

A federal court in Texas blocked parts of the law from taking effect. The 5th U.S. Circuit Court of Appeals reversed that ruling but kept the injunction in place pending appeal.

In 2021, Florida lawmakers enacted a law that placed a fine of $25,000 to $250,000 per day on large social media companies that de-platform political candidates.

The U.S. District Court for the Northern District of Florida and the 11th U.S. Circuit Court of Appeals blocked the law from taking effect because of First Amendment concerns.

The Texas and Florida challenges are pending before the Supreme Court. The justices are scheduled to consider taking up the cases during their Sept. 26 conference, which is not open to the public.

At least four justices must vote to hear the disputes for oral arguments to be presented.

The Justice Department said the conflicting rulings from the 5th and 11th Circuits suggest that the high court should grant review in the disputes and rule whether the laws interfere with the companies’ and users’ First Amendment rights.

“The platforms’ content-moderation activities are protected by the First Amendment, and the content-moderation and individualized-explanation requirements impermissibly burden those protected activities,” Solicitor General Elizabeth Prelogar said in the federal government’s filing.

NetChoice, a group that advocates for keeping the internet free, is leading the challenge in both high court petitions.

The group said in a press release this month that California’s requirements for social media companies amount to an “aggressive” censorship attempt “disguised as a transparency law.”

“The First Amendment prohibits the government from regulating lawful speech — directly or indirectly. States cannot avoid this prohibition by rebranding censorship as ‘transparency’ requirements,” said Chris Marchese, director of litigation for NetChoice.

The case, X Corp. v. Bonta, was assigned to U.S. District Judge William B. Shubb, a George W. Bush appointee for the Eastern District of California.