The Electronic Frontier Foundation (EFF) urged a federal appeals court to reinstate X’s lawsuit challenging a California law that forces social media companies to file reports to the state about their content moderation decisions, and with respect to five controversial issues in particular—an unconstitutional intrusion into platforms’ right to curate hosted speech free of government interference.
While we are enthusiastic proponents of transparency and have worked, through the Santa Clara Principles and otherwise, to encourage online platforms to provide information to their users, we see the clear threat in the state mandates. Indeed, the Santa Clara Principles itself warns against government’s use of its voluntary standards as mandates. California’s law is especially concerning since it appears aimed at coercing social media platforms to more actively moderate user posts.
In a brief filed with the U.S. Court of Appeals for the Ninth Circuit, we asserted—as we have repeatedly in the face of state mandates around the country about what speech social media companies can and cannot host—that allowing California to interject itself into platforms’ editorial processes, in any form, raises serious First Amendment concerns.
At issue is California A.B. 587, a 2022 law requiring large social media companies to semiannually report to the state attorney general detailed information about the content moderation decisions they make and, in particular, with respect to hot button issues like hate speech or racism, extremism or radicalization, disinformation or misinformation, harassment, and foreign political interference.
A.B. 587 requires companies to report “detailed descriptions” of its content moderation practices generally and for each of these categories, and also to report detailed information about all posts flagged as belonging to any of those categories, including how content in these categories is defined, how it was flagged, how it was moderated, and whether their action was appealed. Companies can be fined up to $15,000 a day for failing to comply.
X, the social media company formerly known as Twitter, sued to overturn the law, claiming correctly that it violates its First Amendment right against being compelled to speak. A federal judge declined to put the law on temporary hold and dismissed the lawsuit.
We agree with Twitter and urge the Ninth Circuit to reverse the lower court. The law was intended to be and is operating as an informal censorship scheme to pressure online intermediaries to moderate user speech, which the First Amendment does not allow.
It’s akin to requiring a state attorney general or law enforcement to be able to listen in on editorial board meetings at the local newspaper or TV station, a clear interference with editorial freedom. The Supreme Court has consistently upheld this general principle of editorial freedom in a variety of speech contexts. There shouldn’t be a different rule for social media.
From a legal perspective, the issue before the court is what degree of First Amendment scrutiny is used to analyze the law. The district court found that the law need only be justified and not burdensome to comply with, a low degree of analysis known as Zauderer scrutiny, that is reserved for compelled factual and noncontroversial commercial speech. In our brief, we urge that as a law that both intrudes upon editorial freedom and disfavors certain categories of speech it must survive the far more rigorous strict First Amendment scrutiny. Our brief sets out several reasons why strict scrutiny should be applied.
Our brief also distinguishes A.B. 587’s speech compulsions from ones that do not touch the editorial process such as requirements that companies disclose how they handle user data. Such laws are typically subject to an intermediate level of scrutiny, and EFF strongly supports such laws that can pass this test.
A.B. 587 says X and other social media companies must report to the California Attorney General whether and how it curates disfavored and controversial speech and then adhere to those statements, or face fines. As a practical matter, this requirement is unworkable—content moderation policies are highly subjective, constantly evolving, and subject to numerous influences.
And as a matter of law, A.B. 587 interferes with platforms’ constitutional right to decide whether, how, when, and in what way to moderate controversial speech. The law is a thinly veiled attempt to coerce sites to remove content the government doesn’t like.
We hope the Ninth Circuit agrees that’s not allowed under the First Amendment.
