California AG Abandons Key Parts of California’s Mandatory Editorial Transparency Law (AB 587)–X v. Bonta
As you may recall, the Ninth Circuit substantially gutted California’s mandatory editorial transparency law (AB 587). In the aftermath of that ruling, the California AG abandoned its defense of key portions of the law. The settlement says:
subdivisions (a)(3), (a)(4)(A), and (a)(5) of California Business and Professions Code section 22677 violate the First Amendment of the United States Constitution facially and as applied to Plaintiff
The state also must pay X $345,576 to cover its challenge costs. Our tax dollars at work 🤑. In exchange, X dropped its challenge to the rest of the law. This post takes a look at what survives.
The law governs “social media platforms,” defined as: “a public or semipublic internet-based service or application that has users in California and that [1] A substantial function of the service or application is to connect users in order to allow users to interact socially with each other within the service or application [excluding email and direct messaging functions], and…[2] allows users to Construct a public or semipublic profile for purposes of signing into and using the service or application; Populate a list of other users with whom an individual shares a social connection within the system; [AND] Create or post content viewable by other users, including, but not limited to, on message boards, in chat rooms, or through a landing page or main feed that presents the user with content generated by other users.” The entity must also have more than $100M in revenue in the prior calendar year (see my discussion about the pros/cons of size-based distinctions) and excludes “direct messages, commercial transactions, [&] consumer reviews.”
Among other problems, this definition is riddled with vagueness. What is a “semipublic service” or “semipublic profile”??? The law also makes content-based distinctions about who’s covered (social media with certain attributes vs. other UGC sites). These definitional distinctions should trigger strict scrutiny for the whole law. See NetChoice v. Bonta.
After the abandoned provisions are ignored, the regulated social media platforms must:
1) Post a TOS “reasonably designed to inform all users of the social media platform of the existence and contents of the terms of service.” Among other things, the TOS must [A] describe “the process that users must follow to flag content, groups, or other users that they believe violate the terms of service, and the social media company’s commitments on response and resolution time,” and [B] list the “potential actions the social media company may take against an item of content or a user, including, but not limited to, removal, demonetization, deprioritization, or banning.”
I assume most services will “comply” with this provision by providing vague and unhelpful generalities and catchall provisions like “The service may take other steps not disclosed in this TOS.” If I had compliance responsibility, I wouldn’t get detailed about anything in my TOS to avoid the potential of an unexpected breach. If the state challenges a TOS disclosure as not detailed enough, that would be a mandatory editorial transparency enforcement that I think is unconstitutional.
2) Submit a TOS report to the AG annually that includes the current TOS and a description of any changes from last year’s TOS, which the AG will make available in a public repository. Note that the AG could go to a service’s website to download the TOS annually, run its own redlines, and upload them to the repository. 🤷♂️
3) Include in its report a “detailed description of content moderation practices used by the social media company for that platform,” with numerous details specified in the statute, such as “How automated content moderation systems enforce terms of service of the social media platform and when these systems involve human review.” This is a pure mandatory editorial transparency obligation, so I think it remains unconstitutional.
I doubt the state is excited about enforcing these surviving provisions. Among other consequences, the suit would trigger as-applied constitutional challenges that I think remain potent. Regardless of whether social media platforms actually change their behavior in response to the law, I can’t imagine that anyone–services, consumers, the state–will benefit from the remaining statutory provisions, especially when the compliance teams water down their disclosures. So following X’s lawsuit and settlement, I think AB 587 is basically a smoldering wreck–another artifact of California’s relentless attempts at online censorship. Great job, California. ⭐
Case Citation: X Corp v. Bonta, 2:23-cv-01939-WBS-AC (N.D. Cal. settlement filed Feb. 24, 2025)
Selected Posts on Compelled Editorial Transparency
- Facebook Compelled to Comply With Washington Political Ad Transparency Law (Catch-Up Post)–State v. Meta
- Ninth Circuit Enjoins Much of California’s Mandatory Editorial Transparency Law (AB 587)–X v. Bonta
- My Amicus Brief in Moody v. NetChoice and NetChoice v. Paxton
- I Filed an Amicus Brief Against New York’s Editorial Transparency Law
- New York’s Mandatory Editorial Transparency Law Preliminarily Enjoined–Volokh v. James
- Rounding Up Some Recent Editorial Transparency Developments
- My New Article Drops a Truth Bomb on Zauderer and Censorial Efforts to Mandate Editorial Transparency
- The 5th Circuit Puts the 1st Amendment in a Blender & Whips Up a Terrible #MAGA Kool-Aid–NetChoice v. Paxton
- A Short Explainer of Why California’s Mandatory Transparency Bill (AB 587) Is Terrible
- Quick Links from the Past Year, Part 8 (Editorial Transparency)
- Will California Clone-and-Revise Some Terrible Ideas from Florida/Texas’ Social Media Censorship Laws? (Analysis of CA AB587)
- My SCOTUS Amicus Brief on Texas HB20’s Unconstitutional Transparency Requirements
- New Article: “The Constitutionality of Mandating Editorial Transparency”
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