X marks the spot where free speech clashes with Californian transparency

AB 587's true purpose is to eliminate speech the government finds objectionable, lawyers argue

A California social media transparency law is being challenged in court by Elon Musk's X Corp on the grounds that it violates the US Constitution's First Amendment right to freedom of speech.

The lawsuit [PDF], filed last week under seal, seeks to get X, formerly known as Twitter, out of reporting requirements that came with the passage of AB 587 in September last year. The law includes reporting requirements for large social media platforms on how they moderate content and statistics regarding moderation decisions.

"California will not stand by as social media is weaponized to spread hate and disinformation that threaten our communities and foundational values as a country," California Governor Gavin Newsom said when he signed the bill last year. "This action brings much-needed transparency and accountability to the policies that shape the social media content we consume every day."

As far as X is concerned, however, the true purpose of AB 587 was "pressuring companies such as X Corp. to remove, demonetize, or deprioritize constitutionally-protected speech that the State deems undesirable or harmful," lawyers argued in their lawsuit.

Neither lawyers for X, X itself or the California AG's office immediately responded to The Register's questions.

The stopped clock that is Elon Musk's Twitter

Musk's lawyers didn't just assert claims that the true purpose of AB 587 was to act as a cudgel against social media companies – they brought receipts too.

Several quotes are included in the suit from related cases and statements made during the legislative process, among them a statement from AB 587 lead author Assembly Member Jesse Gabriel. Per Gabriel, AB 587 is an "important first step in protecting our democracy from the dangerously divisive content that has become all too common on social media."

All the arguments made for AB 587, say X lawyers, mean the true purpose of the law "is crystal clear… to pressure social media companies to eliminate or minimize content that the government has deemed objectionable."

"If X has nothing to hide, they should have no objection to this bill," Gabriel said of the platform's opposition.

X has been repeatedly criticized since Musk's takeover last year of becoming a haven for hate speech, violence, and misinformation. The company has hit back against reports on the rise of hate on the platform with lawsuits and accusations that such reports exaggerate what has actually happened at the platform, and that such report writers are guilty of causing X's much-publicized loss of revenue mostly driven by fleeing advertisers.

Yet its lawyers are making a compelling case for why AB 587 might not be the right move to clean it up.

Per the lawsuit, AB 587 "seeks to force social media companies to provide the AG and the public detailed information about how, if at all, they define and moderate the boundaries of the most controversial categories of content." X claims in the suit that categories enforced by AB 587 include "hate speech, racism, extremism, misinformation, political interference and harassment," which it describes as difficult to define and enforce, and "politically charged."

"Because X Corp. must take such positions on these topics as they are formulated by the state, X Corp. is being forced to adopt the State's politically-charged terms, which is a form of compelled speech in and of itself," X's lawyers argued.

"The First Amendment unequivocally prohibits this kind of interference with a traditional publisher's editorial judgment… that X is a social media platform does not change the analysis."

Whether that argument will hold up in court is unclear – legal experts we contacted regarding the case haven't responded to questions. Plenty of experts have spoken out against AB 587, though, including Santa Clara University School of Law professor Eric Goldman, who made an argument similar to X's not long before the bill passed.

As platforms would be forced to make content moderation decisions based on government-defined categories, "the resulting distortions to the platforms' editorial decision-making constitutes censorship," Goldman said, adding that the bill won't help consumers as platforms will simply "water down the [terms of service]-based disclosures to the point of uselessness."

Goldman said there are several bases for constitutional challenges to AB 587, which he said is "likely to be struck down as unconstitutional at substantial taxpayer expense." It's unclear when the matter could go to trial. If X doesn't manage to get the law tossed, it could face fines of up to $15,000 per violation per day if it chooses not to comply, likely setting up more expensive legal battles. ®

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