Elon Musk's X has won its appeal on free speech grounds to block AB 587, a California law requiring social media companies to submit annual reports publicly explaining their controversial content moderation decisions.
In his opinion, Ninth Circuit court of appeals judge Milan Smith reversed a district court's ruling that he said improperly rejected Musk's First Amendment argument. Smith was seemingly baffled to find that the "district court performed, essentially, no analysis on this question."
[...]
X accused California of trying to spark backlash with a supposed "transparency measure" that forces "companies like X Corp. to engage in speech against their will" by threatening "draconian financial penalties" if companies don't "remove, demonetize, or deprioritize constitutionally protected speech that the state deems undesirable or harmful."Smith said that the appeals court accounted for these alleged effects in its analysis, but "whether State officials intended these effects plays no role in our analysis of the merits" of X's case.
That's likely because the appeals court agreed that X was likely to prevail in its First Amendment claims, finding that AB 587 compels noncommercial speech that requires strict scrutiny. The law also is not narrowly tailored enough "to serve the State's purported goal of requiring social media companies to be transparent about their policies and practices." As Smith wrote, if the law is just a transparency measure, "the relevant question here is: transparency into what?"
[...]
If AB 587 only required companies to disclose "whether it was moderating certain categories of speech without having to define those categories in a public report," that might work.
[...]
Instead, AB 587's provisions require "every covered social media company to reveal its policy opinion about contentious issues, such as what constitutes hate speech or misinformation and whether to moderate such expression," Smith wrote.
"Even a pure 'transparency' measure, if it compels non-commercial speech, is subject to strict scrutiny," Smith wrote, concluding that X would likely suffer irreparable harm if key parts of the law weren't blocked.
[...]
Smith ordered the case to be remanded to the district court "with instructions to enter a preliminary injunction consistent with the opinion." The district court will also have to determine if unconstitutional parts of the law "are severable from the remainder of AB 587 and, if so, which, if any, of the remaining challenged provisions should also be enjoined."This is the outcome that the state had asked for if the appeals court sided with X, giving California a fighting chance to preserve some parts of the law. But if the district court decides to strike the entire content moderation report section from the law, AB 587 would be properly gutted—basically only requiring social media companies to post their terms of service on a government website. That's the only part of the law that X did not fight to enjoin on appeal.
(Score: 3, Insightful) by JoeMerchant on Friday September 13, @02:13PM (3 children)
I've started seeing the social media platform formerly known as Twitter being referred to as Xitter.
Particularly apropos appellation IMO, if you pronounce the X soft like in Mayan Mexico: Meh-she-co.
🌻🌻🌻 [google.com]
(Score: 5, Funny) by DannyB on Friday September 13, @04:04PM (1 child)
I know it is confusing. But it goes like this.
2. Twitter was replaced by X
1. X was replaced by Wayland
Stop asking "How stupid can you be?" Some people apparently take it as a challenge.
(Score: 1, Touché) by Anonymous Coward on Friday September 13, @04:13PM
I thought Wayland was dead? https://en.wikipedia.org/wiki/Waylon_Jennings [wikipedia.org]
(Score: 1) by khallow on Friday September 13, @11:02PM
This is just the natural course of things. Thought leaders on SN annointed [soylentnews.org] Xitter months ago. The herd now stampedes to follow.
(Score: 0) by Anonymous Coward on Friday September 13, @03:50PM (12 children)
Cool--not let's see him apply "essentially, no analysis on this question" of the state forcing you to hand over identification when a crime hasn't been committed simply for moving freely throughout the state.
Or maybe he could do no analysis on any number of things the state compels you to buy with your own money--permits, licenses, car insurance, health insurance, housing and kickbacks for illegal immigrants...
(Score: 3, Interesting) by aafcac on Friday September 13, @05:17PM (11 children)
Companies are already forced to engage in speech against their will, it is indeed mostly a question about the analysis not being done. This doesn't necessarily mean that the result will be any different. Or at least I hope not, because if CA can't force them to send this report in, then what about all the other reports that companies are forced to file? Would those also be violations of the 1st amendment?
There may be reasons that this isn't constitutional, but the 1st amendment can't be the reason.
(Score: 1, Interesting) by Anonymous Coward on Friday September 13, @06:01PM (8 children)
It absolutely can. The right to choose to speak freely without government interference also means you can refuse to exercise that right. Additionally there's also the 5th amendment in criminal cases.
In much the same way as everyone having the right to keep and bare arms, you also have the ability to choose to NOT own a gun.
The government can not compel speech just as much as it isn't allowed to regulate the speech out of your mouth, force you to choose a state religion, or suppress the freedom of the press.
(Score: 2) by Thexalon on Friday September 13, @06:09PM (1 child)
Corporations are different from individuals, though: They are and have always been legal fictions created because it's can be a useful way to organize people to do business. And that means they are governed by different rules in a lot of ways.
So, for example, it is currently completely legal for the government to require tobacco companies to print warnings by the Surgeon General about what their products will do to you both in any advertising and on the packaging. And yes, the tobacco companies have opposed this in court, and lost.
"Think of how stupid the average person is. Then realize half of 'em are stupider than that." - George Carlin
(Score: 1) by khallow on Friday September 13, @11:08PM
While this story is an excellent example of why corporate personhood is necessary, it's worth noting that individuals engaging in business would be subject to the same restrictions.
They would be required even if it were an individual making all those cigarettes personally. The restriction is justified on the basis of the harm that cigarette use causes not the corporate structure that some tobacco companies have.
(Score: 2) by aafcac on Saturday September 14, @03:25AM (5 children)
They have the option to not provide their service in CA if they think this is too onerous. Knowing what the rules are and explaining the more controversial decisions is a necessary step when sites like that are so important to the functioning of society. The law still has to permit various different expressive activities.
(Score: 2, Touché) by khallow on Sunday September 15, @05:05AM (4 children)
They also have the option to contest the law in court. That looks like it'll be effective in this case.
(Score: 2) by aafcac on Tuesday September 17, @12:20AM (3 children)
They do, that doesn't mean anything as anybody can file a law suit over pretty much anything. It takes a particularly special kind of incompetence to have a suit that's so bad that the court won't accept it.
(Score: 1) by khallow on Tuesday September 17, @07:21AM (2 children)
Except of course, unless they win.
This goes beyond mere acceptance. This appeal has succeeded and will force the original court to "accept", that is consider, the plaintiffs' free speech argument.
(Score: 2) by aafcac on Tuesday September 17, @06:26PM (1 child)
They won't win because they're already required to fill out numerous other reports. Part of being in business is making relevant regulatory filings based on the law where you're operating.
(Score: 1) by khallow on Wednesday September 18, @12:11AM
Are those other reports also unconstitutional infringements of the US Constitution? Seems to me a bit like arguing that since you already breathe air, then you should breathe toxic gas too..
(Score: 2) by vux984 on Friday September 13, @07:53PM (1 child)
Next up; General Mills doesn't want to put nutrition info on food labels -- "forced to engage in speech against our will".
It seems absurd on its face.
(Score: 0) by Anonymous Coward on Tuesday September 17, @10:30PM
That's disclosure about the actual product. This law would like General Mills forced to put their HR hiring policies on the packet.
(Score: 3, Troll) by Runaway1956 on Friday September 13, @04:11PM (11 children)
The platforms affected have become the de-facto town square in today's society. Government wants 'undesirable speech' silenced, but government is prohibited from censoring free speech. California wants to do an end run around the constitution, by regulating private industry to censor all the speech that California doesn't like. More to the point, California wants to deputize platform owners to run the police state that California envisions.
No government, at any level, in the United States is permitted by the US Constitution to regulate free speech, except in some very few situations already addressed by law. No new laws required, thank you very much.
“I have become friends with many school shooters” - Tampon Tim Walz
(Score: 2, Insightful) by DannyB on Friday September 13, @04:16PM (4 children)
I don't have an answer. I doubt you do either.
What do you think about dangerous misinformation that spreads on social media? Especially information that can kill people. The Tide Pod Challenge! Or anti vaccination nonsense?
I'm not talking about politics or opinions. Just stuff that is black and white dangerous.
I don't know. Maybe we should just do nothing. Darwinism at its best.
Stop asking "How stupid can you be?" Some people apparently take it as a challenge.
(Score: 1, Insightful) by Runaway1956 on Friday September 13, @05:01PM (2 children)
Dangerous misinformation? I think we should ask Charles about that. https://www.youtube.com/results?search_query=Darwin+Awards [youtube.com]
Yes, I'm serious about Darwin awards. I am told that I grew up in a much more dangerous time than today's children. We had BB guns, lawn darts, real guns, no seatbelts, no warning labels on anything. But, we grew up and procreated. Today's children have been deprived of everything that could be dangerous, so they aren't smart enough to question how stupid it would be to eat a Tide pod. For that reason, they won't grow up and procreate.
A better idea might be, take away all those cell phones and computers we give our kids, and boot their asses outdoors to experience real life. Allow them to make mud pies, and taste their mud pies. If they are allowed to taste icky things, they'll be smart enough not to eat icky stuff as a challenge when we give their phones back. When we do give their computers back, make a rule that they spend 20 hours outdoors for every hour on the computer. And, start stripping some of those warning labels from commonplace items in their lives. "Caution: kitchen range burners may be hot!" Derp-a-derp - I figured that out around age two or three, when I burned my fingertips. To add insult to injury, I was spanked for burning myself. "I TOLD YOU to stay away from the stove! Now go sit in the corner!"
Stop smothering kids with love, and allow them to learn about life. The most fit will survive.
“I have become friends with many school shooters” - Tampon Tim Walz
(Score: 3, Insightful) by r1348 on Friday September 13, @11:53PM (1 child)
But your generation was spoiled rotten compared to the previous one. I suggest we ban antibiotics and reintroduce leaded fuels.
(Score: 1) by Runaway1956 on Saturday September 14, @02:43AM
Spoiled rotten. Maybe. There were child labor laws to protect us from the worst exploitation. Some wealthier families noticeably spoiled their kids. But, wealthy people have spoiled their children since before the Egyptian pyramids were built. I grew up with a work ethic, as did many in my age group. I wasn't given my first car, or my first rifle, or much of anything beyond meals, and a bed to return to at night. The younger generation's idea of life in the 50s and 60 doesn't match reality. How many of you young people have gone to the principal's office for swats? None? No corporal punishment? Oh yeah, corporal punishment is now considered to be abuse. Tell me more about being spoiled rotten, OK?
“I have become friends with many school shooters” - Tampon Tim Walz
(Score: 1) by khallow on Saturday September 14, @04:36AM
Frank and open speech. Publicize the idiots who die.
Indeed. Keep in mind that when you have someone with the power to do something about dangerous misinformation, they'll be able to use that power on valuable information too.
(Score: 5, Insightful) by JoeMerchant on Friday September 13, @04:40PM (1 child)
The difference in today's "town centers" is that they are attended by millions, grouped by algorithms.
There are some new problems when hostile foreign powers can send thousands of agents to your town square at near zero cost to them. It's actually not too far from the spam e-mail problem.
Imagine Trafalgar Square in 1970 filled with thousands of Red Chinese and Soviet agents smothering every passerby in deftly engineered propaganda, dressing and acting like locals but spewing divisive vitriol and support for a minority political agenda that is beneficial to their interests...
That turf was reserved for the CIA in third world countries.
🌻🌻🌻 [google.com]
(Score: 3, Touché) by Captival on Friday September 13, @10:03PM
I'd be a lot more concerned about that if my own "democratic" government wasn't already doing that themselves.
(Score: 5, Insightful) by Thexalon on Friday September 13, @06:12PM (3 children)
They aren't town squares though. Town squares are public spaces, created and paid for by the government. Social media platforms are private spaces created and owned in most cases for the purpose of making a profit. So not so much a town square as a privately owned and operated theater, who has every right to decide which acts will and will not be present on stage and how many tickets they'll sell to each performance.
"Think of how stupid the average person is. Then realize half of 'em are stupider than that." - George Carlin
(Score: 2) by aafcac on Saturday September 14, @03:30AM (2 children)
That's a massive problem that really needs to be debated. People are rightfully concerned about a public town square that's run by the government, but the question of what sort of town square we can have if the government isn't running is also important.
The best we've done so far is with section 230, but that there are a lot of practical issues with handling it in that fashion as these private companies are still subject to pressure by their advertisers to limit speech more than the government would be permitted to.
(Score: 2) by epitaxial on Saturday September 14, @05:30AM (1 child)
There isn't much to debate. Try an experiment.
Go to your local mall (if it's still open) and start yelling about your political beliefs. Pretty soon you'll be asked to leave. That's social media.
(Score: 2) by aafcac on Saturday September 14, @05:03PM
That's also completely different. There's a few malls near me, but a ton more parks. There's no need to spout my beliefs in the malls as they all have public sidewalks next to them as well as a bunch of other public spaces.
There is no online equivalent of a park where one can exercise their free speech where the public can choose to listen.
(Score: 2, Insightful) by Hauke on Friday September 13, @04:11PM
IANAL, but who defines the "undefined" categories?
A brief reminder of the 1st Amendment:
From: https://en.wikipedia.org/wiki/First_Amendment_to_the_United_States_Constitution [wikipedia.org]
One may not like what's being published, but one doesn't have to read the garbage(YMMV). Same goes for banning books in a library.
And of course: https://xkcd.com/1357/ [xkcd.com]
Cheers!
TANSTAAFL
(Score: 5, Insightful) by Thexalon on Friday September 13, @05:29PM (2 children)
When the head of your company is using your platforms to make rape threats [x.com], I know full well that (a) I don't want to go there, and (b) if I were in charge of advertising for a company I wouldn't want it to be on there either. If I wanted 8chan (and I don't), I know where to find it.
And I should point out that Musk has the audacity to, while arguing that his site can't be regulated due to Free Speech, sue companies who chose not to advertise on his site, an act which is completely protected by Free Speech. I'm pretty sure he only believes in Free Speech so much as it allows him to do what he wants, and not when it allows somebody else to do something he doesn't like.
"Think of how stupid the average person is. Then realize half of 'em are stupider than that." - George Carlin
(Score: 4, Insightful) by mcgrew on Friday September 13, @07:46PM (1 child)
I'm pretty sure he only believes in Free Speech so much as it allows him to do what he wants
You seem to think that those born into great wealth are anything at all like you. They aren't. You have had to struggle, any struggles they face are voluntary. They are completely ignorant of what it's like to not have their every wish fulfilled from cradle to grave and can't possibly understand the concept of "need" any more than I can know what life is like in Gaza.
I won't vote for anyone like that unless they're running against a similar rich boy who is an incumbent who sucked.
A Russian operative has infiltrated the highest level of our government. Where's Joe McCarthy when we need him?
(Score: 2) by Thexalon on Saturday September 14, @01:41AM
You don't need to tell me: One branch of my family tree is very politically-connected old money, and I encountered some rich kids in my college days as well. They have a very skewed idea of what normal people's lives are actually like.
One of the more common routes for rich kids is: Private prep schools that give them an advantage in college admissions, Ivy League schools, followed by top-tier business school. Then it's on to their first "job", which is typically business consulting - this involves living out of a suitcase while flying around the country giving Powerpoint presentations on topics they barely understand. Eventually, they get hired in as executives, possibly at daddy's company, or possibly just to a company they impressed while doing business consulting. And those are the people running most departments of most major businesses these days.
"Think of how stupid the average person is. Then realize half of 'em are stupider than that." - George Carlin