Federal judge rebukes California laws targeting misinformation

SACRAMENTO, Calif. (CN) — A federal judge on Tuesday knocked down a California law requiring large social media companies to remove deceptive content from their platforms, saying federal law preempts the state.

Social media giants like X Corp. challenged Assembly Bill 2655, which requires certain platforms to remove “materially deceptive content” about political candidates, elections officials and elected officers. They argued the federal Communications Decency Act gives service providers like social media platforms immunity from content posted by a third party.

Senior U.S. District Judge John Mendez said from the bench Tuesday that he didn’t need to rule on First Amendment and constitutional arguments, instead relying solely on federal preemption. However, his ruling only applies to qualifying parties in the suit — X Corp. and Rumble.

“No parts of this statute are severable because the whole statute is preempted,” Mendez said. “No parts of A.B. 2655 can be salvaged.”

The law — called the Defending Democracy from Deepfake Deception Act of 2024 — sought to stop the spread of election-related deepfakes. Its author had called such deepfakes dangerous tools for those waging disinformation campaigns.

X Corp. argued federal law specifically gives service providers like itself immunity from suits stemming from content created by a third party.

“There have been no arguments that we have become a content creator,” said attorney Joel Kurtzberg, representing X Corp.

Deputy Attorney General Kristin Liska argued the state law had a broader scope, meaning that it does not apply to publishers only but also includes social media platforms like X Corp. Mendez pressed her on that argument, noting the state law requires certain companies to create a reporting and content removal system, though X Corp. performs no editorial function like a publisher.

“It punishes them for doing something that they’re clearly protected by [the Communications Decency Act] from doing,” Mendez said.

A stay previously issued by the judge against the law remains in effect pending a formal, written ruling.

The judge also had serious doubts, but made no ruling, about a similar law the plaintiffs are challenging: Assembly Bill 2839. This law bans digitally manipulated communications, like mailers and video ads, that are false or misleading and target an election worker, elected official, voting equipment or people running for office four months before an election.

Like A.B. 2655, Mendez hit pause on A.B. 2839 late last year. On Tuesday, he questioned how the law wouldn’t create a chilling effect on speech.

“Anybody can sue,” the judge said. “I can sue. If I see the video, under this law I can sue."

“You know the state can’t create a law that creates this chilling effect,” Mendez added.

The judge also noted the state didn’t prove it had no less restrictive method to address the problem of deepfakes.

Liska argued that the law would trigger if a reasonable person would believe the communication to be true. The content creator could avoid confusion by placing a message at the video’s end labeling it as satire. However, Mendez pointed out that is compelled speech.

“He’s going to be risk averse,” Mendez said of a content creator. “He’s not going to do that. You’re chilling his First Amendment rights.”

Attorney Johannes Widmalm-Delphonse, representing plaintiffs the Babylon Bee and Kelly Chang Rickert, agreed that a message at a video’s conclusion is compelled speech because it changes what the content creator wants to say. Parody and satire don’t require disclaimers under the First Amendment, he said.

“A disclaimer kills the joke,” he added.

The judge delivered sharp criticism of the Legislature, saying it should be told to do a better job when writing laws.

“But the Legislature goes ahead and drafts it anyway,” he said, adding moments later: “You’re going after the First Amendment, you’ve got to be more specific. You’ve got to be less vague.”