Calif. Judge Grants Bonta's Motion to Dismiss First Amendment Hate Speech Case

As plaintiffs, social networking app Minds Inc., podcaster Tim Pool, satirical news website the Babylon Bee and National Religious Broadcasters (NRB) lack standing to challenge AB-587, California's hate speech law, and their claims fail as a matter of law, said U.S. District Judge Hernan Vera for Central California in Los Angeles Friday. Vera's order (docket 2:23-cv-02705) granted the motion of California Attorney General Rob Bonta (D) to dismiss their complaint.

The judge said the plaintiffs failed to allege either an “actual injury or a realistic danger of a future injury,” as required for judicial review. “'Conjectural or hypothetical' injuries are simply not enough to create a case or controversy under Article III,” he said. Plaintiffs’ first amended complaint fails to allege AB 587 caused plaintiffs to suffer a “specific present objective harm or a threat of specific future harm,” Vera said.

Because the court can’t find that any amendment would be futile, the First Amendment complaint is dismissed with leave to amend, Vera said. If the plaintiffs choose again to amend the first amended complaint, they must do so by Sept. 18, he said.

California Gov. Gavin Newsom (D) signed AB-587 into law in September. It requires social media companies to publicly post their content moderation policies and semiannually report data on their enforcement of the policies to the attorney general. The plaintiffs sued in April, joined by NRB in May, to have AB-587 declared unconstitutional. The bill was introduced after the Jan. 6, 2021, attack on the U.S. Capitol, as scrutiny grew on social media’s role in fomenting extremism and violence online.

In their opposition to Bonta’s May motion to dismiss for lack of standing and “not ripe” claims, the plaintiffs said in June that Bonta can’t save the California legislature’s “handiwork from constitutional scrutiny (see 2306060054).” Government “interference with one’s attempts to sell or distribute written material unquestionably satisfies Article III’s injury-in-fact requirement,” they said. Plaintiffs Pool, Bee and Minds have standing because AB-587 “threatens a conduit of speech,” said the opposition.

NRB member Salem Media Group, with over $100 million in revenue, will be subject to “onerous” reporting requirements and investigation if Salem doesn’t correctly identify and action speech on its platforms, said their opposition; Salem might have to “censor speech to avoid penalties,” it said.

In his June support of his motion to dismiss, Bonta said plaintiffs argue the statute gives the AG “carte blanche to threaten fines and other consequences” as a way to dictate how social media companies moderate content on their platforms. They also contend the law requires social media companies to “flag content" as hate speech and misinformation even if their terms of service don’t use those categories, said the reply.

The plaintiffs’ “construction of the statute flies in the face of the plain language of the law,” Bonta said. The law requires reporting of “whether the current version of the terms of service define each of the following categories of content, and, if so, the definitions of those categories,” he said. It also requires reporting any existing policies intended to address the categories and “information on content that was flagged by the social media company as content belonging to any of the categories." It's “entirely up to social media companies to decide whether a particular post should be flagged or actioned and why,” Bonta said.