X Corp. v. Bonta

In 2022, California passed a law requiring large social media companies both to publicly post their terms of service and to file semiannual reports to the California Attorney General. In the reports, companies had to disclose how their terms of service or content-moderation policies address a host of controversial subjects: “hate speech or racism; extremism or radicalization; disinformation or misinformation; harassment; and foreign political interference.”

X Corp. sued the State. It argued, among other things, that the law unconstitutionally compelled it to speak on controversial subjects, violating its state and federal free-speech rights. It asked the federal court to halt the law’s enforcement while the case proceeded.

The trial court, however, denied X Corp.’s request. It held that the posting and reporting requirements appeared constitutional under a Supreme Court case upholding disclosure requirements for advertisers.

X Corp. appealed that ruling, and FIRE supported the appeal with a “friend of the court” brief. FIRE’s brief argued that the posting and reporting requirements unconstitutionally compel social media companies to speak about topics on which they’d like to remain silent. And social media content-moderation policies are not like advertising; they are more like the editorial decisions of newspapers.

The Ninth Circuit agreed with FIRE’s position–at least as to the reporting requirement–and it reversed the trial court. It further remanded the case back to the trial court, directing it to enjoin the reporting requirement and to decide the rest of X Corp.’s lawsuit in light of its decision.