X Corp. v. Bonta

Court: U.S. Court of Appeals for the Ninth Circuit

Date Filed: Feb. 21, 2024

Background: In September 2022, California Gov. Gavin Newsom signed into law A.B. 587, legislation that requires social media companies to post their terms of service and provide information about whether and how companies moderate controversial categories of expression, including hate speech, extremism, and disinformation or misinformation. The law imposes financial penalties if the state believes that companies have misrepresented their moderation standards.

X Corp. sued California Attorney General Rob Bonta, alleging that the law is unconstitutional. But the U.S. District Court for the Eastern District of California denied the social media platform’s request for a preliminary injunction that would prevent the state from enforcing the law, holding that the law does not violate the company’s First Amendment rights.

X Corp. appealed to the U.S. Court of Appeals for the Ninth Circuit.

Our Position: The Ninth Circuit should reverse the district court’s decision.

• The First Amendment’s protection for the exercise of editorial judgment is virtually absolute.
• California’s disclosure mandate chills the exercise of editorial judgment by compelling speakers to disclose or alter their editorial standards.

Quote: “Compelling speakers to disclose or alter their editorial standards … burdens fully protected expression twice over: by discouraging the publication of speech that the mandate makes costlier or riskier to distribute, and by interfering with a speaker or publisher’s freedom to articulate its editorial practices on its own terms.”

Related: In September 2023, the Reporters Committee filed a friend-of-the-court brief urging the U.S. Court of Appeals for the Second Circuit to block a New York law governing how social media platforms police “hateful conduct” online. Reporters Committee attorneys argued that the state’s Hateful Conduct Law chills the exercise of editorial judgment by compelling speakers to disclose or alter their editorial standards.

Update: On Sept. 4, 2024, the Ninth Circuit reversed the district court’s decision, holding that requiring social media platforms to report to the attorney general how they moderate especially controversial categories of speech violates the First Amendment.