Elon Musk challenges California social media transparency law

Elon Musk, last week, sued the State of California. At issue: Assembly Bill 587, which requires social media companies to post their terms of service and file regular reports on enforcement of those terms. The problem: this bill opens social media companies to direct coercion by the Attorney General of the State of California. It’s the first time any social media company has taken such legal action. And according to a particular independent journalist, it’s about time.

Elon Musk takes on the government

Gov. Gavin Newsom (D-Calif.) signed AB 587 into law on September 13, 2022. He touted it as a social media transparency measure. That might apply if it meant being transparent about terms of service and how not to offend the moderators. But that’s not what Gov. Newsom said. Instead he spoke of “protecting” people “from hate and disinformation spread online.” In other words, this law compels censorship, and makes a social media company a State actor – a California State actor.

This is worse than the regular meetings Old Twitter’s Trust and Safety Team used to have with FBI Agent Chan. This requires a social media company to submit in writing data on how much problematic speech passed, how many users published it, and how Trust and Safety punished them.

Platform X still has its headquarters, therefore its base, in California. But what matters is not where the company is based, but that residents of California access it.

This obviously violates the First Amendment, on the same theory the plaintiffs in Missouri v. Biden allege. And it does so in the most blatant fashion anyone can imagine.

Accordingly, on September 8, 2023, Elon Musk sued California, in the U.S. District Court for the Eastern District of California (Sacramento Division). By now, CourtListener has the docket page, and one document: the complaint.

Other lawsuits involving social media companies in California

One other social media platform (Minds) sued the State in April, in the Central District of California. That case is now dismissed with leave to amend – and Minds has until Monday morning to do so. Minds made the same complaint Elon Musk is now making: against AB 587. But the court found that Minds doesn’t generate enough revenue for the new law to touch it. Therefore, no injury in fact – and no standing.

In addition, a Benjamin Woodhouse sued two social media companies in California, and a slew of California officials and judges. The social media companies were Meta and Alphabet (Google, etc.), and one of the officials was Attorney General Bonta. Woodhouse alleged a plethora of fanciful offenses, including, incredibly, genocide. The U.S. District Court for the Southern District of New York threw the case out as frivolous. Furthermore, the New York court gave Woodhouse thirty days to show just cause why the court shouldn’t bar him from suing any of the defendants in that court again, without first obtaining the court’s leave. This case does not appear to be relevant to AB Five Eighty-seven.

Tracy Beanz opens a thread

Tracy Beanz, at UncoverDC, dropped a thread on this case beginning at 11:39 a.m. EDT yesterday. Here are the odd numbers:

Reaction to this thread included skepticism about Elon Musk. One user accused him of continuing the shadow-ban policies he said he abolished when he bought the platform.

One other user encouraged Musk to relocate X to Texas.

But, as CNAV has noted above, that might not solve the problem.

Two other users gave pointed perspectives on California’s attitude.

This last post references the “public health order” in New Mexico. That order involves a suspension of open-carry and concealed-carry permissions in cities meeting a threshold of “gun violence.” Thus far only Albuquerque qualifies. But Judge David H. Urias of the U.S. District Court for New Mexico, enjoined that part of the order yesterday.

Thus far, Laura Loomer, who has her own lawsuit against X for her own deplatforming, has not commented.

Analysis

Elon Musk did right to file this action against California. One cannot imagine a worse law than this. It violates every concept of freedom of speech, and makes any such platform a California state actor. Nor does his complaint suffer the central weakness of Minds’ complaint. Unlike Minds, X does generate revenues sufficient to be subject to the law’s reporting requirements.

In his complaint, Musk lays specific emphasis on X having offices in California, both in San Francisco and in Sacramento. Though your editor is not a lawyer, he fails to see why that matters. The bill text clearly says that, to be subject to the new law, a social media platform need only:

• Have users resident in California,
• Allow users to do what social media platform users normally do, and
• Generate more than $100 million in revenue in the previous calendar year.

That text says nothing about having headquarters in California, or a California charter. A Delaware corporation would also be subject to this new law if it met the above criteria.

Andrew Torba at Gab should pay attention. If he doesn’t generate $100 million a year in revenue yet, he might well do so in future. As a result he would be subject to the new law, California offices or no.

Elon Musk sends mixed signals

Nevertheless, Elon Musk is sending mixed signals. Why did he appoint WEF wheel Linda Yaccarino as CEO of X? What has he done about the troublemakers still on his Trust and Safety Team, or among moderational Artificial Intelligences? Why, for instance, did one of those AIs suspend the Never Back Down account, forcing Elon Musk to intervene personally to reinstate it? Then we have the charge that “shadow bans” on X, remain.

Thus Elon Musk seems to say that he, not any government, will decide what to permit or forbid on his platform. Any social media head should and likely would do the same. But his position would be far more consistent, were he to “ditch” X’s more controversial content moderation policies. If he maintained the same content standards Gab maintains, he would have a lot more support.