Musk’s X takes legal action against California’s moderation law.
Elon Musk’s Social Media Giant X Challenges California Law, Asserting Free Speech Rights
Elon Musk’s social media giant X, formerly known as Twitter, is taking legal action against California, challenging the constitutionality of a state law that the company argues infringes its free speech rights.
The law in question, California Assembly Bill 587 (AB 587), grants the state the power to dictate terms of service to X and other large social media companies. It requires these platforms to include terms related to content moderation in their policies. Additionally, the law mandates X to submit semi-annual “terms of service reports” to the California attorney general.
These reports must provide detailed descriptions of X’s content moderation practices, including how the company defines and moderates various categories of content such as hate speech, extremism, disinformation, harassment, and foreign political interference. The reports must also include statistics on actions taken to moderate these categories of content.
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In a lawsuit filed in Sacramento on Friday, X argues that AB 587, signed into law by Democratic Gov. Gavin Newsom a year ago, violates the company’s free speech rights under both the First Amendment to the United States Constitution and Article I, Section 2 of the California Constitution.
X contends that the law infringes on its First Amendment right to “not speak about controversial topics” and to have the autonomy to decide what it will and won’t say on such topics.
“[The law] impermissibly interferes with the constitutionally-protected editorial judgments of companies such as X Corp., has both the purpose and likely effect of pressuring companies such as X Corp. to remove, demonetize, or deprioritize constitutionally-protected speech that the State deems undesirable or harmful, and places an unjustified and undue burden on social media companies such as X Corp,” the lawsuit states (pdf).
California has described AB 587 as a “transparency measure” aimed at making content moderation policies and statistics publicly available. Supporters of the law view it as a means to combat online hate and hold social media companies accountable for user-generated content.
However, X disputes California’s characterization, citing legislative history and statements from the law’s author, sponsors, and supporters as evidence that the law’s true intent, in the company’s view, is to pressure social media platforms to “eliminate” certain constitutionally-protected content.
The lawsuit references a quote from a California Assembly Committee on Judiciary Report for the 2021–2022 session, dated April 27, 2021, which states: “[i]f 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.”
X also 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 further 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.
California Assemblymember Jesse Gabriel (D-Encino), the author of the law, responded to the news of X’s lawsuit on Friday.
“If Twitter has nothing to hide, then they should have no objection to this bill,” Mr. Gabriel told Politico.
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