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New California law likely to set off fight over social media moderation

The law faces challenges from the tech industry, which also opposes laws in Republican-led states regulating content policing policies

Source: Washington Post

California Gov. Gavin Newsom has signed a controversial bill into law that aims to force greater transparency of social media companies, setting up a potential battle over whether such measures violate free-speech protections.

The law, known as A.B. 587, requires tech companies to file semiannual reports with the state’s attorney general that publicly disclose their content moderation policies regarding hate speech, disinformation and extremism. The bill, which Newsom signed Tuesday, was introduced in the wake of the Jan. 6, 2021, attack on the U.S. Capitol as scrutiny grew on the tech giants’ role in fomenting extremism and violence.

Newsom’s signature is a sign of the bigger role states are trying to play in regulating the tech industry in the absence of action by Congress. But unlike most of the state efforts to address tech platforms’ content moderation policies, which generally have been championed by Republican-led legislatures, the California law is the most significant policy efforts to date from Democrats and civil rights groups reacting to criticism that tech companies aren’t doing enough to prevent abuse on their platforms.

“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 (D) said in a news release.

But the California effort is likely to draw the same opposition from tech companies and their trade groups that has greeted the Republican-led efforts. Chamber of Progress, an industry coalition that includes Facebook parent company Meta and Google, said Wednesday it is “absolutely” looking at potential court challenges, saying such mandates raise First Amendment issues.

“It’s like requiring a bookstore to report to the government which books it carries, or requiring the New York Times to explain which stories it publishes,” said Adam Kovacevich, the coalition’s CEO.

Only a handful of states have social media laws on the books, but more states could soon follow California’s lead. In an analysis shared with The Washington Post in July, the industry group Computer & Communications Industry Association identified more than 100 bills in state legislatures across the country aimed at regulating social media content moderation policies. Many state legislatures have adjourned for the year, so tech lobbyists are bracing for more activity in 2023.

Tech industry groups, including CCIA and NetChoice, another trade group whose members include Google, Meta and TikTok, have sued to block social media laws in Florida and Texas that seek to regulate how social media companies police content in response to allegations that tech companies are silencing conservatives.

Earlier this year, tech industry trade groups took their battle to the Supreme Court, which temporarily blocked the Texas law.

California Assemblymember Jesse Gabriel (D-Woodland Hills), who wrote the California legislation, told The Post that he was mindful of potential legal challenges in drafting A.B. 587. He says the law is “on much stronger ground than Texas and Florida.”

“Our legislation is very different, both in intent and approach, from the laws passed in conservative states,” he told The Post. “We’re just asking for more transparency.”

Gabriel questioned why the industry groups would oppose the bill.

“Unless they have something to hide, why would social media companies be afraid to share such basic information with consumers and users?” Gabriel said.

Some large tech companies already voluntarily share reports on their content moderation efforts. Yet tech company critics say those reports are confusing and have inconsistent categories, making it difficult to compare metrics from year to year or from company to company.

Under A.B. 587, the companies are required to submit detailed descriptions of their efforts to police content, including information about how much they rely on artificial intelligence. Companies would also have to provide details about how many pieces of content their systems flag, and then how much is removed or deprioritized. Social media companies that fail to comply with the reporting requirements could face fines.

Companies would be required to start submitting these reports to the state’s attorney general in 2024.

The California bill was backed by major civil rights groups, including the Anti-Defamation League, which ran a campaign supporting the legislation’s passage called “Stop Hiding Hate.”

“This bill will have national implications to ensure that vulnerable communities are protected from the harms we see online,” said ADL CEO Jonathan Greenblatt.

Still, some legal experts maintain there are First Amendment concerns about the legislation.

Eric Goldman, a professor at Santa Clara University School of Law, wrote in a recent blog post that A.B. 587 “has censorial consequences.”

“The bill is likely to be struck down as unconstitutional at substantial taxpayer expense,” he wrote.