California Social Media Platform Reporting Mandate Likely Violates the First Amendment
From today’s Ninth Circuit opinion in X Corp. v. Bonta, decided by Judge Milan Smith, joined by Judges Mark Bennett and Anthony Johnstone:
AB 587 … [among other things requires] that social media companies submit to the State a semiannual report detailing their TOS and content-moderation practices including, if at all, how the terms of service define and address (a) hate speech or racism; (b) extremism or radicalization; (c) disinformation or misinformation; (d) harassment; and (e) foreign political interference, as well as statistics on content that was flagged by the social media company as belonging to any of the categories (TOS Report) …. [W]e refer to these … as the Content Category Report provisions.
X Corp. is likely to succeed in showing that the Content Category Report provisions facially violate the First Amendment….
[T]he Content Category Reports are not commercial speech. They require a company to recast its content-moderation practices in language prescribed by the State, implicitly opining on whether and how certain controversial categories of content should be moderated. As a result, few indicia of commercial speech are present in the Content Category Reports.
First, the Content Category Reports do not satisfy the “usual[ ] defin[ition]” of commercial speech—i.e., “speech that does no more than propose a commercial transaction.” The State appears to concede as much in its answering brief.
To the extent our circuit has recognized exceptions to that general rule, those exceptions are limited and are inapplicable to the Content Category Reports here. For example, as identified by the First Amendment and Internet Law Scholars amici, we have characterized the following speech as commercial even if not a clear fit with the Supreme Court’s above articulation: (i) targeted, individualized solicitations; contract negotiations, and retail product warnings. Though it does not directly or exclusively propose a commercial transaction, all of this speech communicates the terms of an actual or potential transaction. But the Content Category Reports go further: they express a view about those terms by conveying whether a comp
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