A conservative satire site, a populist podcaster, and an open-source social network are taking California's Democratic attorney general to court over a new law that will force social media companies to define undesirable speech and provide biannual reports on how they have policed it.

The Babylon Bee, Tim Pool, and Minds Inc. sued California Attorney General Robert Bonta Tuesday in the U.S. District Court for the Central District of California, seeking to block the enforcement of Democratic Assembly member Jesse Gabriel's AB 587, which Gov. Gavin Newsom signed into law on Sept. 13, 2022.

Babylon Bee CEO Seth Dillon noted on his Substack that contrary to claims made by Democratic supporters of the legislation, AB 587 "is a censorship bill, not a transparency bill."

Minds CEO Bill Ottman, whose company will be impacted, said in a statement, "This law is openly about keeping people from exercising their right to create and publish constitutionally protected speech."

The 'censorship bill'

The law requires social media companies to post terms of service for each social media platform, thereby parameterizing acceptable user behavior and activities as well as what behavior or activities "may subject the user or an item of content to being actioned."

Extra to requiring companies to codify acceptable behavior and the consequences for misbehavior, the legislation states that twice a year, companies must submit a report to the AG, providing:

• the current version of their TOS;
• how their TOS defines (a) hate speech or racism, (b) extremism or radicalization, (c) disinformation or misinformation, (d) harassment, and (e) foreign political interference;
• a breakdown of their censorship/moderation practices;
• information about how users or content have been removed;
• "Information on content that was flagged by the social media company"; and
• other details pertaining to their so-called moderation efforts.

Companies that fail to provide an "adequate" report on time risk being "liable for a civil penalty not to exceed fifteen thousand dollars ($15,000) per violation per day."

Upon ratifying this bill, Newsom said, "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."

"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. I thank Assemblymember Gabriel for championing this important measure to protect Californians from hate, harassment and lies spread online," added the Democratic governor.

AB 587 went into effect January 2023. Companies must submit reports to the AG no later than Jan. 1, 2024.

The lawsuit

The lawsuit states that AB 587 is "unconstitutional on its face," and violates the rights of the Bee, Minds, and Pool under the First Amendment, the 14th Amendment, and the California Constitution.

"Those who wield political power in the Golden State have been candid about their displeasure with the speech being published on social media platforms," says the suit. "California Governor Gavin Newsom and Attorney General Bonta have both expressed a desire to use state power to chill speech they do not approve of, constitutionally protected expression they refer to with derogatory labels like 'disinformation,' 'hate speech,' and 'extremism.'"

Bonta's November 2022 letter to the heads of YouTube, Meta, Twitter, TikTok, and Reddit, in which he stated, "Social media platforms must take critical steps to stop the spread of disinformation and misinformation," is cited in the suit as one among many indications of the Newsom administration's desire to clamp down on free speech.

Later in the same letter, Bonta wrote, "I implore you to do more to rid your platforms of the dangerous disinformation, misinformation, conspiracy theories, and threats that fuel political violence, spread fear and distrust, and ultimately chill our democratic process."

According to the suit, AB 587 is "a vehicle for these unconstitutional ambitions" that was "designed to chill expression of lawful speech the State of California disapproves of to, as the legislation's sponsor put it, 'protect Californians from hate, harassment and lies spread online."

Among the categories of moderated speech (e.g., "racism," "extremism," etc.) that companies are instructed to report on under AB 587, the complaint notes that with the exception of "certain types of 'harassment' and 'foreign political interference,' these otherwise undefined categories of speech are plainly protected by the First Amendment."

"The practical effect of AB 587 is clear. To head off potential liability under the statute, and to keep the State of California's hands off its operations, social media companies must create and enforce policies related to disfavored content," said the suit. "Selectively requiring transparency of moderation policies of only certain viewpoints, using negative pejorative language, is a facial attempt to encourage increased moderation of such views."

Concerning California's purported desire to curb hate speech and misinformation on the internet, Dillon wrote, "It’s a good thing when people are allowed to speak freely. It’s a bad thing when Big Tech and the government work together to decide what we’re allowed to say. Why? Because they often get it wrong. Even worse, they get it wrong on purpose."

"In today’s post-truth, anti-reality world, describing a male person as a man is considered 'hateful conduct.' If Big Tech is tasked by the state with eliminating hateful or misinformative content, they’ll stuff everything they don’t like into those categories, including opinions, jokes, and even factual statements," Dillon added.

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