Appeals Judge Baffled by X's Loss Over Calif. Moderation Law, Orders Injunction
Freeman writes:
Elon Musk's X has won its appeal on free speech grounds to block AB 587, a California law requiring social media companies to submit annual reports publicly explaining their controversial content moderation decisions.
In his opinion, Ninth Circuit court of appeals judge Milan Smith reversed a district court's ruling that he said improperly rejected Musk's First Amendment argument. Smith was seemingly baffled to find that the "district court performed, essentially, no analysis on this question."
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X accused California of trying to spark backlash with a supposed "transparency measure" that forces "companies like X Corp. to engage in speech against their will" by threatening "draconian financial penalties" if companies don't "remove, demonetize, or deprioritize constitutionally protected speech that the state deems undesirable or harmful."Smith said that the appeals court accounted for these alleged effects in its analysis, but "whether State officials intended these effects plays no role in our analysis of the merits" of X's case.
That's likely because the appeals court agreed that X was likely to prevail in its First Amendment claims, finding that AB 587 compels noncommercial speech that requires strict scrutiny. The law also is not narrowly tailored enough "to serve the State's purported goal of requiring social media companies to be transparent about their policies and practices." As Smith wrote, if the law is just a transparency measure, "the relevant question here is: transparency into what?"
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If AB 587 only required companies to disclose "whether it was moderating certain categories of speech without having to define those categories in a public report," that might work.
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Instead, AB 587's provisions require "every covered social media company to reveal its policy opinion about contentious issues, such as what constitutes hate speech or misinformation and whether to moderate such expression," Smith wrote.
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