AB 587 Would Apply 'Pressure and Threats' to a 'Necessary Conduit': Plaintiffs

California Attorney General Rob Bonta (D) can't save the California Legislature’s "handiwork from constitutional scrutiny,” said plaintiffs The Babylon Bee, podcast host Tim Pool, the National Religious Broadcasters and social networking app company Minds, Inc., in a memorandum Monday (docket 2:23-cv-02705) in opposition to Bonta’s motion to dismiss their freedom of speech lawsuit in U.S. District Court for Central California in Los Angeles.

Plaintiffs seek to block AB 587, a California law that would require social media companies to report content deemed “hate speech” and “disinformation” to the government. After joining the suit last month, NRB CEO said the organization is acting to stop the “weaponization of new laws against Christian communicators” (see 2305180062).

Bonta argued in his May 25 motion to dismiss that plaintiffs lacked standing and “their claims are not ripe.” Their amended complaint “fails to state a claim” and “cannot be cured by amendment,” Bonta said, following a May 18 conference of counsel.

In their Monday memorandum opposing Bonta’s motion, plaintiffs cited Italian Colors Rest. v. Becerra and LSO, Ltd. v. Stroh, where the 9th Circuit U.S. Court of Appeals said when “the threatened enforcement effort implicates First Amendment rights, the [standing] inquiring tilts dramatically toward a finding of standing.” Standing, plaintiffs said, “can be established if the State is ‘applying pressure and threats to a necessary conduit.’” Government “interference with one’s attempts to sell or distribute written material unquestionably satisfies Article III’s injury-in-fact requirement,” they said.

NRB has standing as an association to bring the lawsuit, said the memorandum. Member company Salem Media Group has more than $100 million in annual revenue as defined by AB 587, and will be subject to “onerous” reporting requirements and investigation if Salem doesn't correctly identify and action speech on its platforms -- and fines if a court decides its decisions on censoring speech were incorrect, they said. AB 587 will force Salem Media to “censor speech to avoid penalties,” it said.

The Babylon Bee, Minds and Pool have standing because AB 587 “threatens a conduit of speech,” said the memorandum. It referenced a general rule applicable to federal court suits with multiple plaintiffs cited in Leonard v. Clark: “Once the court determines that one of the plaintiffs has standing, it need not decide the standing of the others.”

Plaintiffs’ First Amendment challenge is viable, plaintiffs said, saying AB 587 is a “content-based speech regulation subject to strict scrutiny” based on the topic discussed or message expressed. Viewpoint-based laws that target speech based on its communicative content are “presumptively unconstitutional,” they said, citing Reed v. Town of Gilbert. AB 587 is “viewpoint-based speech regulation."

Bonta classifies AB 587 under the standard of Zauderer v. Office of Disciplinary Counsel, saying the law “does not dictate content moderation policies or decisions about any particular content” and thus “it involves compelled commercial speech of purely factual and uncontroversial information,” said the memorandum. Disclosures at issue are “not merely ‘factual and uncontroversial,’ nor do they further a substantial government interest, plaintiffs said.

AB 587 does not define “misinformation” or other speech categories, and is “unconstitutionally vague,” said the memorandum. Plaintiffs labeled the social media law as a “recipe for ‘discriminatory enforcement.’”