X, formerly Twitter, challenges California's new transparency law as unconstitutional

X, formerly known as Twitter, has filed a lawsuit alleging that a new California law requiring social networks to declare certain moderation practices is a violation of the company's Constitutional right to free speech.

AB 587 was signed into law a year ago. At the time, California Governor Gavin Newsom wrote: "Californians deserve to know how these platforms are impacting our public discourse, and this action brings much-needed transparency and accountability to the policies that shape the social media content we consume every day."

The law requires social media companies to publicly detail moderation practices around hate speech, racism, extremism, disinformation, harassment and foreign political interference. How these concepts are defined, how rules around them are enforced and what users can do to better understand (and if necessary, challenge) the pertinent processes must be submitted twice a year starting in 2024.

How closely the state should be involved in the moderation practices of private platforms is certainly a matter of some dispute and delicacy. Too far in one direction results in censorship like China's, while a totally hands-off approach results in rampant abuse, as we've seen in the past.

California has definitely placed itself at the heavier end of the government involvement spectrum, partly because of the state's inherently progressive character and partly because, as the cradle and playground for many of these companies, it enjoys a particular attunement to and influence on their affairs. California's privacy bill, for instance, is widely seen as a precursor to a national law similarly attempting to protect consumers from the depredations of tech companies.

This tendency is at odds with the philosophy of Elon Musk, owner of X/Twitter and self-described "free speech absolutist." After more or less eliminating the teams and efforts at the company dedicated to defining and responding to matters like hate speech and disinformation, he may find it difficult to comply with AB 587 even if he did not find doing so objectionable. (Musk has not yet personally weighed in on the lawsuit.)

The safest way out of this double predicament is, via the time-honored tradition of this country, challenging the offending law as an unconstitutional government overreach into the private affairs of billion-dollar corporations.

As the lawsuit (2:23-at-00903, filed in the Eastern District of California) explains, AB 587 is not just wrong, but the harbinger of widespread censorship. From the text of the complaint:

The State of California touts AB 587 as a mere “transparency measure” under which certain social media companies must make their content moderation policies and statistics publicly available... the true intent of AB 587 is to pressure social media platforms to “eliminate” certain constitutionally-protected content viewed by the State as problematic.

...Through AB 587, the State is compelling social media companies to take public positions on controversial and politically-charged issues. And, because X Corp. must take such positions on these topics as they are formulated by the State, X Corp. is being forced to adopt the State’s politically-charged terms, which is a form of compelled speech in and of itself.

AB 587 thus mandates X Corp. to speak about sensitive, controversial topics about which it does not wish to speak in the hopes of pressuring X Corp. to limit constitutionally-protected content on its platform that the State apparently finds objectionable or undesirable.

It is, the lawsuit asserts, the right of X/Twitter to privately exert whatever definitions and moderation methods it chooses on its own platform, a simple matter of the company expressing itself. Although describing it that way does make it sound a little absurd, it is far from unprecedented, legally or situationally, and the argument that the company is performing a protected "editorial" form of speech, like a newspaper.

Of course, by exerting editorial control over something, you also exert some ownership over it, and there are different protections afforded to platforms that do not editorialize (broadband providers, for example, supposedly) and those that do (actual newspapers or websites like TechCrunch).

We will have to leave it to the lawyers and experts to weigh in on the specific arguments and merits thereof, but there is an obvious question the lawsuit brings up. X/Twitter's lawyers say that they need not speak on these topics, but obviously there are other topics on which they can be compelled to speak. One cannot claim "editorial independence" in refusing to report income to the IRS, for instance, or not complying with a court order. Laws exist to delineate the different categories of information into those which a company or individual can be compelled to provide and those which it may provide at its discretion.

Naturally those laws are in constant negotiation in the courts, and new ones like AB 587 inevitably face legal challenges from those whom they would affect. It's the way the system works — but given the wild west that X/Twitter has become, moderation-wise, it's hard not to wonder whether their intentions here lie purely on the side of civic rectitude.

Responding to the lawsuit, California Assemblymember Jesse Gabriel, author of the bill, said that AB 587 is "a pure transparency measure that simply requires companies to be upfront about if and how they are moderating content. It in no way requires any specific content moderation policies."

He added, perhaps unnecessarily, that "If Twitter has nothing to hide, then they should have no objection to this bill." Sadly, that type of language is frequently employed in cases where government overreach is blatant, like New York's infamous stop-and-frisk policies. Gabriel would do well to remember that although he is pursuing a more perfect union through transparency, he does represent a government for which intrusion on private data (though personal rather than corporate, for reasons we shall not explore here) is a commonplace affair.

The lawsuit filed today asks for a jury trial but this is obviously the earliest possible stage in the matter. We will follow up soon with legal analysis and other official responses as those become available.