Preemptive Challenge to California’s Mandatory Editorial Transparency Law Lacks Standing–Minds v. Bonta

The plaintiffs in this case are Minds, Inc., Tim Pool, the Babylon Bee, and National Religious Broadcasters, which are (respectively): “a social networking app, an active social media content creator, a satirical news website, and a nonpartisan association of Christian communicators.” They challenged California AB 587, California’s mandatory editorial transparency law that, among other unreasonable and onerous requirements, requires regulated social media entities to disclose statistics in 161 different categories.

I think CA AB 587 is clearly unconstitutional (start here), but this particular lawsuit is hampered by the fact that none of the plaintiffs meet the statutory definition of “social media platforms.” (This raises the obvious question of why the social media platforms that are regulated by AB 587 haven’t launched their own preemptive challenge… 🤷‍♂️) Instead, these plaintiffs are entities that are likely to be harmed by the way that social media platforms change their editorial policies to respond to the legal incentives and risks created by the law. While the plaintiffs have good reason to be concerned about their future, they haven’t experienced any consequences yet.

With respect to these plaintiffs, the court easily concludes they lack standing. First, the plaintiffs argued they were more likely to be “censored” due to AB 587. The court breaks this down into a four-step argument:

• Step 1: AB 587 establishes reporting requirements by content categories
• Step 2: regulated social media platforms will feel threated by these reporting requirements
• Step 3: in response, social media platforms will expand their content moderation efforts in the reportable categories
• Step 4: the changed moderation practices will hurt the plaintiffs’ content

As I explain my paper on the constitutionality of mandatory editorial transparency, this four-step process is absolutely right. Mandatory transparency laws reliably chill speech in exactly the way the court describes. However, from the court’s standpoint, none of this has happened yet; and even if steps 1-3 occurred, step 4 isn’t guaranteed. In other words, even if the law chills speech generally, it remains to be seen if those consequences affect the plaintiffs’ speech. Thus, the court says that steps 2-4 require “logical leaps” that the complaint doesn’t adequately justify.

Second, the plaintiffs argued that they would have to self-censor to avoid the 4-step process above. But because they are not the entities regulated by the law, “they cannot allege any fear of prosecution under AB 587.”  The plaintiffs also don’t “allege any ‘affirmative steps’ that they must take [and] do not identify any products whose sales have been impaired as a result of the legislation.”

Because the big social media platforms–the ones that do have to comply with the law–remain on the sidelines for now, we don’t really learn much about the constitutionality of CA AB 587 from this failed challenge. The court also did not engage with the Volokh v. James ruling, which enjoined a mandatory editorial transparency law in New York. However, I believe all of the plaintiffs in that case were directly regulated by the law.

No matter what happens in this case, the constitutionality of CA AB 587 may be implicitly addressed by the Supreme Court appeals in NetChoice v. Moody and NetChoice v. Paxton, both of which involve mandatory editorial transparency laws. I was disappointed to see that the U.S. Solicitor General recommended that the Supreme Court not review the editorial transparency piece, given that in my view both appellate courts clearly misapplied the Zauderer precedent. See my amicus brief on that point. I hope the Supreme Court takes the entire appeals despite the Solicitor General’s position. Not only would a Supreme Court opinion clarify the Texas and Florida laws, but it would accelerate resolutions of the many other editorial transparency laws proliferating throughout the country, including California’s. If the Supreme Court doesn’t deal with the issue now, undoubtedly the legitimacy of mandatory editorial transparency laws will reach its docket soon enough.

Case Citation: Minds, Inc. v. Bonta, No. 2:23-cv-02705 HDV MAA (C.D. Cal. Aug. 18, 2023)