California has faced several First Amendment challenges in response to multiple laws signed in late 2022.
The laws would require compliance from social media platforms and medical doctors with certain speech guidelines that could violate the First Amendment. Technology platforms and physicians have sued the state over the laws, and federal judges have issued temporary orders against two of them to block their enforcement.
“Like their European counterparts, California lawmakers and Governor Newsom want the government to control the internet and online speech,” Chris Marchese, NetChoice’s Director of Litigation, told the Daily Caller News Foundation. “Unlike their European counterparts, California lawmakers and Governor Newsom are subject to the First Amendment in the United States. So long as lawmakers try to control what Americans can see, read, hear, create, and share online, they will run afoul of the First Amendment.”
Billionaire Elon Musk’s X Corp. sued California over Assembly Bill 587 in September, about one year after it was approved by Democratic California Governor Gavin Newsom, because it would force social media companies to publish reports on how they censor issues such as “hate speech,” extremism, “disinformation” and “misinformation.” Violation of the law would lead to fines of up to $15,000 for each breach per day, according to its text.
X, formerly Twitter, is seeking a ruling to assess the law’s legitimacy in order to stave off consequences resulting from its enactment, according to its complaint. The law would have “both the purpose and likely effect of pressuring companies such as X Corp. to remove, demonetize, or deprioritize constitutionally-protected speech that the State deems undesirable or harmful.”
“The legislative record is crystal clear that one of the main purposes of AB 587 — if not the main purpose — is to pressure social media companies to eliminate or minimize content that the government has deemed objectionable,” the complaint continued.
NetChoice, a trade association of tech companies including X, Google and TikTok, brought a lawsuit against the California Age-Appropriate Design Code Act (CAADCA), or AB 2273, which was approved by the governor in September 2022. The law would require companies to enforce their own terms of service “including, but not limited to, privacy policies and those concerning children” and force social media platforms to report to the government about their efforts to control the dissemination of speech.
The U.S. District Court for the Northern District of California granted a preliminary injunction on Sept. 18 on the grounds that it prompts “First Amendment scrutiny,” according to the court document.
“Although the State argues that the policy enforcement provision does not regulate speech because businesses are free to create their own policies, it appears to the Court that NetChoice’s position that the State has no right to enforce obligations that would essentially press private companies into service as government censors, thus violating the First Amendment by proxy, is better grounded in the relevant binding and persuasive precedent,” the preliminary injunction reads.
“Without the First Amendment, Californians would have access only to a government-controlled internet and only content the government deems appropriate for its residents,” Marchese told the DCNF.
California’s Assembly Bill 2098, which Newsom signed into law in September 2022, mandates “action against” doctors who are “charged with unprofessional conduct,” which would include those who spread “misinformation or disinformation” about COVID-19, according to the law.
It would cause doctors to be punished for disseminating COVID-19 information to their patients that does not align with the “contemporary scientific consensus,” according to a press release by New Civil Liberties Alliance, which represented a group of California doctors who first challenged the law on First Amendment grounds in November 2022.
“California appears committed to furthering a pro-censorship agenda in the name of protecting citizens’ safety,” Jenin Younes, litigation counsel at NCLA, told the DCNF. “Unfortunately, this is indicative of a larger trend in this country, especially among but not limited to Democrats, of trying to eliminate speech from the public square that government deems dangerous.”
A federal judge granted an order temporarily blocking the enforcement of the law in January, according to the court document. Newsom signed a bill on Sept. 30 to repeal the law following the significant legal backlash.
“These are utterly misguided efforts, and are why we have a First Amendment,” Younes added. “The Framers of the US Constitution understood that no one—including government—has a monopoly on the truth, and that the truth is best arrived at through open discussion and debate.”
“We will continue to defend the laws passed by the California Legislature,” California’s attorney general’s press office told the DCNF.
Newsom’s press office and X did not respond to the DCNF’s requests for comment.
Jason Cohen on October 7, 2023