Episode 15: X Corp. v. Bonta

X Corp. v. Bonta, argued before Judges Milan D. Smith, Jr., Mark J. Bennett, and Anthony D. Johnstone in the U.S. Court of Appeals for the Ninth Circuit on July 17, 2024. Argued by Joel Kurtzburg (on behalf of X Corp.) and Gabrielle D. Boutin, Deputy Attorney General (on behalf of Robert Bonta, Attorney General of the State of California).

A Description of the Law, from the Appellant’s Opening Brief:

California enacted Assembly Bill 587 (“AB 587”)-a state law compelling social media companies to provide the State with semi-annual disclosures about their efforts to moderate certain categories of constitutionally protected speech that the State disfavors-as part of a concerted effort to limit or eliminate those categories of speech on social media platforms. The California Legislature was clear about both its intent and approach: it intentionally picked the most controversial and difficult-to-define categories of “awful but lawful” content-hate speech, racism, extremism, radicalization, disinformation, misinformation, harassment, and foreign political interference. And it imposed an approach requiring the companies to define the categories (or decline to do so) and provide statistics to the Attorney General (“AG”) about moderation of such content on their platforms as part of an effort to “pressure” the social media companies into restricting speech that the government finds objectionable or undesirable.

The law also provides nearly unfettered discretion to the AG to impose or threaten to impose substantial costs on social media companies-through costly document and other information requests and threatened or actual enforcement actions-if those companies fail to moderate these categories of content….

Issues Presented, from the Appellant’s Opening Brief:

I. Did the district court err by refusing to apply strict scrutiny, and instead applying Zauderer—a standard that applies only to compelled commercial disclosures consisting of purely factual, uncontroversial information about the terms under which services will be available—to AB 587, a law with the stated purpose of pressuring social media companies to change their content-moderation policies to limit or remove content that the State disfavors?

II. Did the district court err by holding that AB 587’s Terms of Service Report survives First Amendment scrutiny, regardless of which level of scrutiny applies?

III. Did the district court err by holding that AB 587-which is designed to and does allow the State to pressure X Corp. to change its content-moderation policies if they are not to the State’s liking-is not preempted by 47 U.S.C. §230(c)(2), which precludes the State from holding interactive computer service providers liable for good faith efforts to moderate objectionable content?

Resources:

• Appellant’s Opening Brief
• Appellee’s Answering Brief
• Appellant’s Reply Brief
• A summary of (and link to) the Electronic Frontier Foundation’s amicus brief

Listen to the argument here:

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