SACRAMENTO, Calif. (CN) — A federal judge heard arguments Monday as to whether he should issue a preliminary injunction against a California law that requires large social media companies to submit reports to the state about how they moderate content.
X Corp., formerly known as Twitter, sued California Attorney General Rob Bonta in September over Assembly Bill 587, which requires certain social media companies to submit reports to the state. Those reports must include how it defines and moderates content like hate speech, radicalization and misinformation, among other categories.
X, currently headed by Elon Musk, filed a motion in October for a preliminary injunction, seeking to stop the state from enforcing AB 587.
Attorney Joel Kurtzberg, representing X, told Senior U.S District Judge William Shubb on Monday that the law may seem like a transparency measure.
“But mandated transparency measures, like AB 587, are much more problematic than first meets the eye,” Kurtzberg added.
According to Kurtzberg, AB 587 — written by Assemblymember Jesse Gabriel, an Encino Democrat — is unconstitutional because of the governmental interference it creates by injecting itself into a social media company’s editorial process.
The bill’s goal, Kurtzberg argued, is to change how social media companies regulate content.
“It allows the government to apply pressure to the social media companies,” Kurtzberg said.
Only companies that make over $100 million a year are affected by the law. The first reports are due to the attorney general by Jan. 1, 2024.
The attorney pointed to a November 2022 letter he said Bonta sent to social media company CEOs, which urged them to change their moderation policies and threatened enforcement of certain laws, including AB 587, if they didn’t.
The law not only requires large social media companies to submit regular reports but also gives the attorney general the ability to demand documents from those companies and compel testimony, which would lead to increased costs, Kurtzberg said.
“The law itself chills speech,” he added.
There are some 7,000 posts on X every second, Kurtzberg said, which creates an enormous burden to comply with the law.
Representing Bonta’s office, attorney Gabrielle Boutin said the law doesn’t dictate how companies should regulate their content. Instead, it requires them to disclose terms of service and provide information on how they enforces its content moderation practices.
AB 587 doesn’t require content moderation or force a company to create such policies. However, if those policies exist, they must be disclosed, Boutin said.
The goal, she added, is to increase transparency and secure the release of some information.
Concerning Bonta’s letter to social media CEOs, Boutin said its characterization was exaggerated. No enforcement is threatened beyond the plain text of the law.
Shubb expressed frustration over what standard of review he should use when determining whether the disclosures required by AB 587 violate the First Amendment. He peppered both attorneys with questions and comparisons, wondering if information provided on a tax return — by an individual or a business — could be considered improper, government-compelled speech.
That standard, the judge said, is the first step he must take before reaching a decision about a preliminary injunction. He ordered further briefing on the issue. No decision from the judge is expected before Nov. 20.
“Once I decide this, it goes up to the Ninth Circuit,” Shubb said, anticipating an appeal. “It’ll go to the Ninth Circuit and they’ll decide whether I was right or wrong.”
Gabriel, the author of AB 587, issued a statement hours before Monday’s hearing. He praised Bonta for defending the law, calling it a “straightforward transparency measure” that requires social media companies to reveal basic information about content moderation.
“Consumers deserve to know the truth about these policies so that they can make informed decisions,” Gabriel said. “If Elon Musk has nothing to hide, then he should have no objection to this bill.”
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