Social Media Bill’s Author Hails Denial of X's Injunction Against Content Reports

Thursday’s denial of a preliminary injunction that X, formerly Twitter, requested to block California Attorney General Rob Bonta (D) from enforcing the state’s social media transparency law (AB-587) cleared Bonta to collect “terms of service” reports from social media companies. They are the first reports under the statute and came due when the law took effect Monday. Hereafter reports will be due each April 1 and Oct. 1, requiring platforms to describe how they're enforcing content moderation policies.

AB-587 “is a pure transparency measure that simply requires Twitter and other companies to be upfront about if and how they are moderating content,” the bill’s author, California Assembly member Jesse Gabriel (D), said in a statement Friday hailing the denial of the injunction. AB-587 “in no way requires any specific content moderation policies,” said Gabriel. “If Twitter has nothing to hide, then they should have no objection to complying with this law," he said. X didn’t respond to email queries seeking comment.

X sought to block AB-587's enforcement on grounds it violates the First Amendment and that federal law preempts it. Denial of the injunction turned on X’s failure to establish the likelihood of success on the merits, said the memorandum and order (docket 2:23-cv-01939) signed by U.S. District Judge William Shubb for Eastern California in Sacramento.

AB-587's terms of service requirement appears to satisfy the test included in the U.S. Supreme Court’s 1985 decision in Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio “for determining whether governmentally compelled commercial disclosure is constitutionally permissible under the First Amendment,” said Shubb’s memorandum and order. The required reports to the AG don’t “so easily fit the traditional definition of commercial speech,” it said.

But the 5th and 11th circuits recently applied Zauderer “in analyzing the constitutionality of strikingly similar statutory provisions requiring social media companies to disclose information going well beyond” what is typically considered terms of service, said the memorandum and order. Following their lead, and applying Zauderer to AB-587’s reporting requirement, the court concluded that the California AG “met his burden of establishing that the reporting requirement also satisfies Zauderer,” it said.

Required AB-587 reports “are purely factual,” said the memorandum and order. AB-587 “merely requires social media companies to identify their existing content moderation policies,” it said. The required disclosures “are also uncontroversial,” it said. That the reports may be tied to a controversial issue doesn’t make them controversial, it said.

While the reporting requirement appears "to place a substantial compliance burden on social media companies,” it doesn’t appear that the requirement “is unjustified or unduly burdensome within the context of First Amendment law,” said the memorandum and order. The California AG has met his burden of showing that the compelled disclosures “are reasonably related to a substantial government interest in requiring social media companies to be transparent about their content moderation policies and practices,” it said.