EPIC Tells Ninth Circuit That X Has To Do More Than Assert Hypothetical Harm To Strike Down California Disclosure Law

March 28, 2024

Last week, EPIC filed an amicus brief in support of the California Attorney General in X v. Bonta, a case in which X seeks to strike down California’s new platform disclosure law as unconstitutional under the First Amendment.

AB 587 requires social media platforms to provide the public with information about their existing content moderation policies and how those policies are enforced. X filed a lawsuit challenging the law on a number of grounds, including arguing that the law unconstitutionally infringed on their First Amendment protected editorial judgement. The district court disagreed and denied X a preliminary injunction. X appealed to the Ninth Circuit.

EPIC’s brief explains why it is important for the public to understand social media platforms’ content moderation policies and practices. The brief also describes platforms’ efforts to avoid public scrutiny, including X’s recent decisions to roll back their previous transparency reporting efforts, to cut off researchers’ access to platform data, and to silence researchers critical of X by suing them. As for the relevant First Amendment test for platform disclosure laws, EPIC explained that disclosure laws should be subject to lesser scrutiny than laws that directly regulate protected speech and require a showing from the challenger that the law will actually chill their speech. Since X relied exclusively on nebulous and hypothetical assertions of harm, its lawsuit must fail.

EPIC regularly participates as amicus in cases concerning platform governance and First Amendment challenges to consumer protection laws.

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