Californian Democrats appear headed for a similar legal battle facing Texas Republicans as the fight over content moderation plays out through state laws.
California’s transparency law, signed by Gov. Gavin Newsom (D) last week, has the opposite intent as that of a law backed by Texas Republicans that is set to go into effect after an appellate court ruled Friday in favor of the state.
But the industry groups opposing Texas’s law are tying the two together, arguing that both content moderation laws are unconstitutional and could set dangerous precedents that lead to more hate speech online.
“Regardless of whether it’s a Democratic or Republican intent, the First Amendment applies equally. And this is exactly where these bills fail in protecting the First Amendment, and this is essentially government compelled speech,” said Carl Szabo, vice president and general counsel of the tech industry group NetChoice.
Tech groups haven’t filed a suit against the California law yet, but signaled one may be approaching.
“I think there are lots of people talking to lots of attorneys about the clear constitutional failures of this legislation,” Szabo said.
Adam Kovacevich, CEO and founder of the tech group Chamber of Progress, said the group is “certainly looking at potential legal action against” California’s transparency law.
“I think one of the things worth noting is that both Texas and the Florida Republican laws had transparency requirements similar to that of the California bill. And those were written by MAGA state legislators, whereas the California bill was written by progressive Democrats. Our view is that they’re all unconstitutional,” he said.
NetChoice and the Communications Industry Association (CCIA) sued Texas and Florida over bills that would restrict companies’ ability to remove users or violative content.
California’s law, though, aims to crack down on hate speech by establishing regulation to promote transparency by compelling tech platforms to publicly post their policies about hate speech and disinformation. It also requires companies to send a report to the state attorney general about current terms of service and data on violations.
“California will not stand by as social media is weaponized to spread hate and disinformation that threaten our communities and foundational values as a country,” Newsom said in a statement last week. “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.”
Democrats have long been pushing for social media companies to take more aggressive action on hate speech and disinformation, but California’s new law is the strongest legislative action taken so far in the U.S.
Szabo argued that despite the law’s intent, it will in effect lay the groundwork to let bad actors evade platforms’ rules.
“Anyone who’s ever watched a heist movie knows that the bad actors look at the schematics of the building, they look at the security and they figure out exactly how to work around it.
What this bill does is essentially give the bad actors all the information they need to avoid detection and avoid the protection mechanisms social media platforms use every single day,” Szabo said.
In fighting the Texas law, industry groups found an ally among civil society groups, forming a rare joint front in a push to get the Supreme Court to temporarily block the law in May.
The Florida and Texas laws were crafted based on Republican accusations that tech companies are censoring content with an anti-conservative bias, and aim to forbid social media companies from banning users based on political views. In doing so, critics say tech companies’ hands would be tied to remove hateful and extremist content that violates their policies.
But some advocacy groups that supported the tech industry-led effort on the Texas bill, like the Anti-Defamation League, support California’s new law.
“We have seen several state bills and some state laws that seek to infringe on a platform’s right to moderate content,” ADL technology policy and advocacy counsel Lauren Krapf said, referencing the laws in Texas and Florida.
“We enthusiastically welcome California’s alternative approach to holding platforms accountable for their role in the proliferation of violence and extremism. [The law] approaches the issue by seeking accountability through transparency,” she added.
According to the ADL, concerns that industry groups are raising about the law giving bad actors a peek into a playbook to avoid rules are not valid because the disclosure is based on the platforms’ policies, not specifics about terms or words that would trigger enforcement.
The ADL also dismissed the concern by noting that bad actors already do take advantage of the platforms’ policies in a way that proliferates hate online.
As California’s new law heads toward a likely legal battle, the fight is expected to heat up over the Texas law, even after the 5th Circuit Court of Appeals ruled in favor of the state.
The case is expected to head to the Supreme Court again, this time based on its merit.
“The law is essentially unimplementable, there’s no way that the services can actually comply with this request,” said Kovacevich of the Chamber of Progress.
“But I think that if it’s allowed to stay on the books, it’s going to make the Texas internet and potentially the broader internet kind of a cesspool.”