Bonta Has Already Threatened X Under New AB-587 Law, Says X’s Opening Brief

California enacted AB-587, compelling social media companies to disclose their efforts to moderate constitutionally protected speech that the state disfavors, as part of a “concerted effort” to limit or eliminate that speech on social media platforms, said X’s opening brief Wednesday (docket 24-271) at the 9th U.S. Circuit Court of Appeals. X’s appeal seeks to reverse the district court’s denial of its injunction to block AB-587's enforcement (see 2401190038).

X sought to block AB-587's enforcement on grounds that it violates the First Amendment and that federal law preempts it. The district court said that denial of the injunction turned on X’s failure to establish its likelihood of success on the merits.

The California legislature was clear about its “intent and approach” behind the enactment of AB-587, said X's opening brief. It intentionally targeted the “most controversial and difficult-to-define categories” of content, including hate speech, racism, extremism, radicalization, disinformation, misinformation, harassment and foreign political interference, it said.

The legislature also imposed an approach requiring the companies to define the categories and to provide statistics to California Attorney General Rob Bonta (D) about the moderation of such content on their platforms, said the brief. It was part of an effort to “pressure” the companies into restricting speech that the government finds objectionable or undesirable, it said.

AB-587 provides “nearly unfettered discretion” to the AG to impose substantial costs on social media companies if they fail to moderate these categories of content, said the brief. The AG can impose costly document and other information requests on the companies or threaten them with “actual enforcement actions,” it said.

These concerns aren’t “purely theoretical,” said the brief. Bonta has already sent a "threat letter" to X and other major social media companies, warning that he won’t hesitate to enforce AB-587 if the companies don’t do more to address his concerns about disinformation and misinformation on their platforms, it said.

Both the structure of AB-587 and the manner in which the AG has threatened to apply it “impermissibly interfere with social media companies' rights under the First Amendment and the California Constitution to moderate user content on their platforms free of state interference with their editorial judgment,” said the brief.

AB-587 violates X’s free speech rights because it compels X “to engage in controversial speech against its will,” said the brief. It also “impermissibly interferes” with X’s “constitutionally protected editorial judgments about what content may appear on its social media platform,” it said.

The statute has “the purpose and likely effect” of pressuring X to disfavor, remove or deprioritize constitutionally protected speech that the state “deems undesirable,” said the brief. In so doing, it places “an unjustified and undue burden” on X, it said. AB-587 “was intended to and does interfere” with the immunity afforded to X under Section 230 of the Communications Decency Act, it said. Section 230 protects X's ability to “self-regulate these categories of content” in the manner that X, not the state of California, “sees fit,” it said.