California’s Social Media Transparency Law: First Amendment Minefield?
On April 13, 2022, satirical conservative website Babylon Bee and others sued California Attorney General Robert Bonta over the state’s new social media law. The plaintiffs argue that Assembly Bill 587, the Social Media Transparency and Accountability Act, violates their First Amendment rights by allegedly subjecting their social media content to censorship.
Signed into law on September 13, 2022, the social media regulation is designed to protect the state’s citizens from online hate speech and disinformation. It requires social media companies to publicly post their policies regarding hate speech, extremism, harassment and disinformation, and provide data on enforcement of those policies.
According to the plaintiffs, AB 587 is “designed to chill expression of lawful speech the State of California disapproves of” and “to cast platforms that do not censor enough as pariahs.” And because of California’s influence on public policy, the plaintiffs allege that AB 587 would “impos[e] an industry standard of viewpoint-based censorship.”
Terms of Service
The plaintiffs acknowledge that AB 587 is not aimed at them directly. The law applies only to companies that operate public or semipublic social media platforms with more than $100 million in gross revenue in the preceding calendar year. A social media platform allows users to create or post content that other users can view, and enables users to interact socially.
Covered companies must post their terms of service concerning content moderation. The terms of service must include:
Processes for filing complaints about terms of service violations
The company’s timeframe for response and resolution of complaints
Potential actions the company may take if it determines that a user has violated the terms of service
Contact information for questions about the terms of service
The company must make the terms of services available in all Medi-Cal threshold languages the company uses in its platform’s features and functionality.
Semiannual Reporting
No later than Jan. 1, 2024, covered companies must submit their first terms of service report for the third quarter of 2023. The second report must be submitted by April 1, 2024, for the fourth quarter of 2023, and the third report by Oct. 1, 2024, for the first and second quarters of 2024. Thereafter, companies must submit reports on April 1 and Oct. 1 of each calendar year.
The reports must include a current version of the company’s terms of service and provide greater detail about the company’s practices. If the company defines “hate speech,” “disinformation,” or other related terms, it must include those definitions and a detailed explanation of its content moderation practices.
Additionally, the company must track and report on the number of actions it takes related to terms of service violations, the views and sharing of actioned content, and the number of appeals and reversals of the company’s actions. This information must be broken down into the various types and categories of content and the types of media incorporated into the content. The company must also indicate how the content was flagged or actioned.
Penalties for Violations
The state’s attorney general or a city attorney of a city with a population greater than 750,000 may prosecute actions under the law. Additionally, a city attorney may bring an action in the name of the State of California on behalf of a city, county, board, corporation, association, officer, or individual.
Covered companies may be fined $15,000 per violation per day for failing to post terms of service, failing to timely submit the required reports, or materially misrepresenting or omitting information in a report. If the attorney general brings an action, half of any penalty will go to the General Fund and half to the county where the judgment is entered. If a city attorney brings an action, half of any penalty goes to the city and half to the county where the judgment is entered.
Comparing Other State Laws
The Babylon Bee lawsuit would suggest that AB 587’s requirements are onerous and in clear violation of the First Amendment. However, the law is less restrictive than social media laws passed by states seeking to protect “conservative” viewpoints.
Texas HB 20 prohibits the censorship of content based on viewpoint and requires companies to disclose their content moderation policies and report on user complaints and the handling of those complaints. A district court granted a preliminary injunction against the law but the Fifth Circuit reversed, ruling that “censorship is not speech.”
Florida SB 7072 is more burdensome. It requires companies to publish their policies for determining whether to “censor, deplatform and shadowban” content, and prohibits platforms from removing certain types of accounts. The Eleventh Circuit upheld a district court ruling that the law violated the First Amendment. The Florida and Texas cases are now before the Supreme Court.
The fate of California AB 587 remains to be seen. In the meantime, covered companies should automate processes for quarantining flagged content to minimize the potential spread and meet commitments for response and resolution of complaints. They should also implement processes for capturing data and generating reports, and ensure that all processes meet the law’s requirements and are accurately reflected in their terms of service.
Keep Up to Date on New Legal Developments
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