(CN) — A Ninth Circuit Court of Appeals panel asked California on Wednesday why a state law requiring social media platforms to disclose their policies about moderating hate speech and disinformation doesn’t amount to a violation of the First Amendment.
The three-judge panel took up X Corp.’s appeal of a federal judge’s refusal to block what California Governor Gavin Newsom in 2022 said was a first-of-its-kind social media transparency law to protect Californians from hate and disinformation spread online.
The law, AB 587, requires large social media businesses with annual revenue over $100 million to provide the state with reports about how they define and moderate content like hate speech, extremism, harassment and misinformation, as well as data on their enforcement of these policies.
But while Deputy Attorney General Gabrielle Boutin argued at the hearing in San Francisco that California is only seeking commercial product disclosures, the appellate panel gave her short thrift on that point.
U.S. Circuit Judge Mark Bennett, a Donald Trump appointee, was quick to observe that the law requires a social media platform to disclose whether it defines, and why or why not, some of the most controversial aspect of speech.
“It is just hard for me to see that this is just random commercial speech,” Bennett said.
Likewise, Boutin’s argument that the law doesn’t require the platforms to define hate speech and the like, if they don’t have any content moderation policies for those categories, didn’t fare well because it would still require the companies to disclose that they don’t have such policies.
“We’re all concerned about the fact that you got this list of things that have to be disclosed,” U.S. Circuit Judge Milan Smith Jr., a George W. Bush appointee, said. “The state is saying you must tell us what you think about each of these things, and if you don’t, you must tell us that too. Why is that not compelled speech?”
And U.S. Circuit Judge Anthony Johnstone, a Joe Biden appointee, wondered whether the state, under a similar line of argument, couldn’t require the San Francisco Chronicle to disclose its policy on ideologically balancing of the letters to the editor it publishes.
“That is the old-fashioned form of content moderation, and it’s clearly protected,” Johnstone said.
X’s appeal comes in the midst of its owner Elon Musk’s long-running feud with California’s political establishment.
The billionaire on Tuesday said he’ll move X, formerly Twitter, and his SpaceX satellite launching business to Texas after California lawmakers passed a bill that prohibits schools from “outing” students to their parents.
“This is the final straw,” Musk posted. “Because of this law and the many others that preceded it, attacking both families and companies, SpaceX will now move its HQ from Hawthorne, California, to Starbase, Texas.
Although the social media law may appear an innocuous transparency measure, the widespread opposition to it across the political spectrum, from the U.S. Chamber of Commerce to the Electronic Frontier Foundation, indicates that it’s a threat to well-established First Amendment interests, Joel Kurtzberg, an attorney for X told the panel.
“The structure of the law is designed to apply pressure in a way that violates the First Amendment,” Kurtzberg said. “The state is compelling disclosures about specific categories of speech that they have used to frame this debate, and they have selected those categories in a way to try to generate controversy.”
While social media platforms are awash with what X characterizes as “awful but lawful” speech, like conspiracy theories about election fraud and Covid-19, efforts by states to get involved in content moderation have met with substantial free speech obstacles.
The U.S. Supreme Court just this month avoided deciding if Texas and Florida can add new content moderation limits on social media.
The two conservative states, in contrast to California, enacted laws to limit social media companies’ content-moderations policies, which aim to restrict certain views deemed as hateful, dangerous or misinformation.
The Texas and Florida statutes, unlike California’s, don’t target any particular categories of content identified by the state, let alone controversial categories like hate speech, misinformation, extremism and foreign political interference, X argues in its appeal.
The appellate panel did not indicate how it would rule.