5 Scholars Urge 9th Circuit to Affirm Denial of X’s Injunction vs. Calif. Social Media Law

The 9th U.S. Circuit Court of Appeals should affirm the district court’s denial of X’s motion for a preliminary injunction to block California Attorney General Rob Bonta (D) from enforcing the state’s social media transparency law, AB-587 (see 2401020002), said five First Amendment and internet law scholars in an amicus brief Tuesday (docket 24-271) in support of the law.

By affirming the district court’s denial, the 9th Circuit can “preserve states’ abilities to demand -- on behalf of consumers and citizens -- greater transparency from the dominant social media companies that directly impact our economy, democracy, and public health,” said the brief. Contrary to what X and its supporters argue, this case isn’t about "state regulation of platforms’ editorial discretion," it said.

AB-587 “neither attempts to dictate how platforms moderate content nor forces them to express any message with which they might disagree,” said the brief. The case rather is about one state’s attempt “to compel disclosures that relate directly to the commercial activities of powerful corporations,” it said. AB-587 seeks only disclosure of the terms “under which social media platforms offer their services and make them available to users,” it said.

The U.S. Supreme Court’s 1985 decision in Zauderer v. Office of Disciplinary Counsel of the Supreme Court “provides the proper framework for analyzing platform transparency laws like AB 587,” said the brief. Holding otherwise “could forestall any future transparency measures contemplated by California, other states, or Congress,” it said. Zauderer held that states can require an advertiser to disclose certain information without violating the advertiser's First Amendment free speech protections as long as the disclosure requirements are reasonably related to the state's interest in preventing deception of consumers.

Platform transparency laws like AB-587 “serve a variety of important and well-established state interests,” said the brief. Compelled disclosures “protect consumers by giving users the information they need to choose the social media platforms they want to use and to understand what constitutes acceptable use,” it said.

Laws like AB-587 also facilitate “democratic self-governance” by informing users about the ways in which platforms affect the information ecosystem and political outcomes, said the brief. They also promote public health and safety by alerting users to the risks of social media usage, it said. The 9th Circuit shouldn’t “hamstring” governments “by removing transparency as a tool for the public interest,” it said.

These laws also “comport with First Amendment doctrine and principles,” said the brief. To the extent that AB-587’s reporting requirements involve speech, that speech “is at most commercial speech related to platforms’ commercial activity,” triggering Zauderer scrutiny, it said.

Under this standard, the compelled disclosures “are purely factual because they seek accurate information about existing policies and practices,” said the brief. The required disclosures also are uncontroversial “because the government neither prescribes a correct answer nor levies liability where a platform’s terms of service are silent on a matter,” it said.

The five scholars don’t mean to suggest that all platform transparency laws “can and should withstand constitutional scrutiny,” said their brief. Platforms should be free to set their content moderation policies and decide how to apply them “beyond the reach of government encroachment or coercion,” it said.

Some transparency laws may impose “far too great a burden on that First Amendment-protected freedom to survive Zauderer scrutiny,” said the brief. Other so-called “transparency” laws “may appear valid on their face but are unconstitutional in their intent or effect,” it said. AB-587 isn’t “such a law,” it said. The 9th Circuit shouldn’t foreclose California’s “modest effort to promote social media platform transparency,” it said.