Opposition to AG's Motion to Dismiss Social Media Suit Based on 'Distorted Reading": Bonta

Plaintiffs’ opposition to California Attorney General Rob Bonta’s (D) motion to dismiss their freedom of speech lawsuit (see 2306060054) is “based entirely on their distorted reading” of California’s AB 587 and speculation that Bonta will use the statute to “punish social media companies” that don’t “aggressively moderate ‘hate speech,’ ‘misinformation’ and other disfavored content on their platforms,” the AG said Monday in a reply (docket 2:23-cv-02705) in support of his motion to dismiss an amended freedom of speech complaint in U.S. District Court for Western California in Los Angeles.

Plaintiffs Minds, Inc., The Babylon Bee, podcast host Tim Pool and National Religious Broadcasters “fail to establish standing” and their claims “fail as a matter of law,” said Bonta’s reply, asking the court to dismiss the complaint without leave to amend. AB 587’s two components require social media companies to disclose certain information to their users and to report certain information to the AG’s website, Bonta said.

To establish standing, plaintiffs argue the statute gives the AG “carte blanche to threaten fines and other consequences” as a way to dictate how social media companies moderate content on their platforms, Bonta said. They also contend the law requires social media companies to “flag content" as hate speech and misinformation even if their terms of service don’t use those categories, said the reply.

Plaintiffs’ “construction of the statute flies in the face of the plain language of the law,” Bonta said. The law requires reporting of “whether the current version of the terms of service define each of the following categories of content, and, if so, the definitions of those categories,” he said. It also requires reporting any existing policies intended to address the categories and “information on content that was flagged by the social media company as content belonging to any of the categories….” It's “entirely up to social media companies to decide whether a particular post should be flagged or actioned and why,” Bonta said.

Plaintiffs’ reading is primarily based on an open letter Bonta wrote in November to the heads of Meta, YouTube, Twitter, TikTok and Reddit asking them to take “critical steps to stop the spread of disinformation” ahead of the November elections. The letter, not a part of the statute’s legislative history, characterizes AB 587 as a “transparency” measure and “nowhere suggests” it gives the AG power to “second guess” and penalize a platform’s categorization, flagging or actioning of content, said Bonta's reply. “Plaintiffs’ theory of standing boils down to an unfounded fear that the Attorney General will misuse AB 587, which is insufficient to confer standing.”

Plaintiffs' assertion AB 587 will make it “more likely” that large social media companies will alter their content-moderation policies in a way that restricts plaintiffs’ and others’ free speech “just highlights the fact that, even though the disclosure requirement has been in effect for nearly six months, there are no factual allegations that any social media company ... has actually done so,” said Bonta. The amended complaint also doesn’t allege any plaintiff has been subject to “censorship” by a social media platform due to AB 587, it said.

NRB’s member company Salem Media Group, with over $100 million in annual revenue as defined by AB 587, will be subject to “onerous” reporting requirements, undue burden, and investigation if it doesn't correctly identify and action speech on its platforms -- plus fines if a court decides its decisions on censoring speech were incorrect, plaintiffs asserted. That will force Salem Media to “censor speech to avoid penalties,” they said.

But plaintiffs’ undue burden claim rests on its speculation that the statute “will affect Salem’s editorial decisions” and that the statute’s requirements “will chill speech,” said Bonta. “This would be insufficient even if Salem were a named plaintiff making allegations as to its own state of mind -- and it is not.”

The assertion that AB 587 is “constitutionally vague” refers to “plaintiffs’ conclusory allegations” about the categories of content listed in the statute that are subject to a “terms of service report," where social media companies must provide the AG with a “statement of whether the current version of the terms of service defines each of the following categories of content, and, if so, the definitions of those categories,” said plaintiffs’ opposition, citing hate speech, racism, extremism, radicalization, disinformation, misinformation, harassment and foreign political interference.

Social media companies aren't required to categorize content in any particular way by AB 587; it's up to them to decide whether to label and take action against hate speech, misinformation and the other categories “and to provide their own definitions of the categories, if they choose to use them in their terms of service at all,” Bonta said. “The allusion to the possibility that the Attorney General will enforce the law to punish disclosures ‘not to his liking’… falls far short of alleging a plausible claim because it is based on a blatant misreading of the statute,” he said.