Existing constitutional law establishes the right of freedom of speech. Existing case law interpreting those provisions applies varying levels of scrutiny to state action that restricts protected speech, based in part on the nature of the forum in which the speech occurs.

This bill would declare that, notwithstanding any law, a social media platform, as defined, shall be considered a traditional First Amendment forum for those purposes, as specified. The bill would require a social media platform located in California to develop a policy or mechanism to address content or communications that constitute unprotected speech, including obscenity, incitement of imminent lawless action, and true threats, or that purport to state factual information that is demonstrably false.

Date of Hearing: March 28, 2023

ASSEMBLY COMMITTEE ON JUDICIARY

Brian Maienschein, Chair

ABPCA Bill Id:AB 836

Author:(Essayli) – As Introduced Ver:February 14, 2023

SUBJECT: Social media platform: traditional First Amendment forum

KEY ISSUES:

1. SHOULD A SOCIAL MEDIA PLATFORM BE REQUIRED TO DEVELOP A POLICY TO ADDRESS CONTENT OR COMMUNICATIONS THAT CONSTITUTE UNPROTECTED SPEECH, INCLUDING OBSCENITY, INCITEMENT OF IMMINENT LAWLESS ACTION, AND TRUE THREATS, OR THAT PURPORT TO STATE FACTUAL INFORMATION THAT IS DEMONSTRABLY FALSE?
2. SHOULD A SOCIAL MEDIA PLATFORM BE DECLARED A TRADITIONAL FIRST AMENDMENT FORUM, AS SPECIFIED?

SYNOPSIS

Reports of prominent persons banned from social medial platforms for the content of the their speech, as well as a pending U.S. Supreme Court decision on the scope Section 230 of the federal Communications Decency Act, have reignited debates about the scope of free speech in the social media age. On one side, some call upon social media companies to more aggressively police content on their platforms and remove false, conspiratorial, or hateful content. On the other side, some, including the author of this bill, question the power of social media corporations to control public discourse and urge restrictions on their ability to remove material based upon its viewpoint. As private entities, social media platforms are not subject to the First Amendment, which only prohibits government restrictions on protected speech. Moreover, as private entities, social media companies have free speech rights of their own. Be that as it may, today’s social media corporations arguably have as much power as government entities, if not more, to determine whose speech is allowed (or not allowed) into the virtual public square. This bill enters the thicket of controversy by proposing a two-part approach.

First, this bill would require social media platforms to adopt policies that address “unprotected” speech (obscenity, true threat, etc.) and information that is “demonstrably false.” Second, and most intriguingly, it invokes California’s unique protection against private restrictions on speech by declaring that social media platforms constitute a “traditional First Amendment forum” as described in PruneYard Shopping Center v. Robins (1980) 447 U.S. 74. Under this bill, a social media platform would be treated as a traditional First Amendment forum. This would allow them to restrict “unprotected” speech, but they could not (absent a compelling interest and narrowly tailored means) regulate “protected” speech. As discussed in the analysis, this bill would require a radical rethinking of the scope of the First Amendment and, most likely, would conflict with federal law which expressly permits a social media platform to block or remove content, “whether or not such material is constitutionally protected.” (47 U.S.C. Section 230 (c)(2).)

The Committee agrees that the cultural and political power of modern social media may require rethinking the nature and scope of free speech. However, for the reasons discussed in the analysis, the issue may require a more measured approach than simply declaring social media platforms a public forum in the same manner that the California Supreme Court declared, and the U.S. Supreme Court affirmed, that a private shopping center under the California Constitution is a public forum. The Committee may also wish to consider whether the bill is premature in light of U.S. Supreme Court’s pending decision on the scope of Section 230.

This bill is nearly identical to AB 1114 (Gallagher), which this Committee heard in 2021. That bill passed out of this Committee but only with the public forum provision removed, leaving only the provision requiring social media platforms to develop policies related to unprotected speech. The bill was never heard by the Assembly Committee on Arts, Entertainment, Sports, Tourism, and Internet Media. Should this bill pass out of this Committee, it would be referred to the Assembly Committee on Privacy and Consumer Protection.

SUMMARY: Declares that a social media platform located in California is a traditional First Amendment forum, as described; and requires a social media platform located in California to develop a policy addressing unprotected speech and demonstrably false information. Specifically, this bill:

1. Declares that a social media platform located in California shall develop a policy or mechanism to address content or communications that constitute unprotected speech, including obscenity, incitement of imminent lawless action, and true threats, or that purport to state factual information that is demonstrably false.
2. Provides, notwithstanding any other law, that a social media platform located in California shall be considered a traditional First Amendment forum, as set forth in PruneYard Shopping Center v Robins.
3. Defines “located in California” to mean, to the extent consistent with federal law, either the person operating the social media platform maintains a business in California, or the user of the platform is located in California.
4. Defines “social media platform” to mean an electronic service held open to the general public to post electronic content or communications, including but not limited to, videos, still photographs, or messages, intended to facilitate the sharing of information, ideas, personal messages, and other content. Social media shall not include a platform operated by local, state, or federal entity or agency of government.

EXISTING LAW:

1. Provides that the government shall make no law abridging the freedom of speech, or of the press. (U.S. Constitution, Amendments I, applied to the states by Amendment XIV.)
2. Provides that every person may freely speak, write, and publish their sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge the liberty of speech or press.
3. Holds that the California Constitution protects speech and petitioning, reasonably exercised, in private shopping centers, and that it is within California’s power to guarantee this right, even though it is more expansive than the free speech right protected by the First Amendment. (PruneYard Shopping Center v. Robins (1980) 447 U.S. 74.)
4. Provides that no provider of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider, or user. (47 U.S.C. Section 230(c)(1).)
5. Provides that no provider of an interactive computer service shall be liable for any action voluntarily taken in good faith to restrict access to or availability of material that the provider considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected. (47 U.S.C. Section 230(c)(2).)

FISCAL EFFECT: As currently in print this bill is keyed non-fiscal.

COMMENTS: As the author puts it, in “a new age where everyone seems to have a Facebook or Twitter account, users have started to see an increase in blocked or suspended accounts. As the influence of the largest social media platforms have grown, so have their ability to skew debate, silence certain voices and views, and tilt public debate in their preferred direction. Meanwhile, the law has remained static, and the courts have been largely unwilling to interpret outdated statutes to new media.”

This bill seeks to push the “static” law in a very new direction by declaring that social media platforms have become the new public square when it comes to debating our most pressing political and social issues. As such, the bill would declare that private social media platforms are traditional public forums for purposes of the First Amendment, in the same manner that the United States Supreme Court held that, under the California Constitution, a private shopping center could be a traditional public form. As detailed below, this bill would require substantial rethinking of the scope of the First Amendment and, most likely, would conflict with federal law, which expressly permits a social media platform to block or remove content, “whether or not such material is constitutionally protected.” (47 U.S.C. Section 230 (c)(2).)

While the Committee agrees that the power of social media may require rethinking the nature of “free speech,” making social media companies a public forum – effectively treating them like government actors – is not an advisable approach. While the second provision of the bill requiring social media platforms to develop a policy on how to handle “unprotected” speech does not raise the same policy, preemption, and constitutional concerns, it is unclear how such a policy could be enforced. It appears that many if not most social media platforms already have such policies, though they may vary greatly. Moreover, the bill only requires platforms to develop a policy, without defining any minimum standard. Consequently, a social media platform’s policy for handling unprotected content might be to do nothing at all.

“Forum Analysis” under the First Amendment. The First Amendment of the United States Constitution provides that, “Congress shall make no law abridging the freedom of speech, or of the press.” [Emphasis added.] As applied to the states through the Fourteenth Amendment, and as interpreted by the courts, the First Amendment prohibits any law or policy, at any level of government, from abridging or burdening freedom of speech.

Public Forums: While any law or policy that targets speech on the basis of its content is constitutionally suspect, the First Amendment also provides that certain forms of government property constitute a “public forum” where any government limitation on speech is highly suspect. Some date the concept of a “public forum” to a 1939 decision concerning the rights of organized labor to initiate a recruitment drive on public property. Justice Owen Roberts held that a local ordinance used to arrest union organizers, as applied, violated the First Amendment rights of speech and assembly. In so holding, Roberts wrote that certain forums, especially streets and parks, “have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” (Hague v. Committee on Industrial Organization (1939) 307 U.S. 496.) In other words, while government may impose content-neutral time, place, and manner restrictions on speech and assembly on public property, efforts to do so in the public square are highly suspect.

The generally accepted starting point for modern “public forum analysis” is Perry Education Association v Perry Local Educators’ Association (1983) 460 U.S. 37, which set forth three categories of government property for First Amendment purposes. First, citing the earlier Hague ruling, the Court noted that “streets and parks” constituted “traditional” or “quintessential” public forums where limitations on speech were the most suspect. Second, the Court noted that government could create a “limited” or “designated” (the terms are used interchangeably) public forum for specific communicative purposes. Although speech in a limited public forum can be more regulated, any content-based restrictions still needs to be narrowly-tailored to meet a compelling state interest.

Other Types of Forums: Limited and Nonpublic -- The key difference between the “limited” (or designated) and “traditional” public forums is that, in the former, the state is not required to retain the open character of the public property or medium of communication. Finally, the Court in Perry identified a third category – nonpublic forums – which the state may close to speech and assembly activities. (However, if such property is ever opened to any expressive purposes, it effectively becomes a limited public forum and must be open to all on a content-neutral basis.)

In 2019, two federal circuit courts held that government use of social media can create a limited public forum. Specifically, the Court held that when President Trump opened his Twitter account – even his private account – to public debate he could not block people from his account because of its content or viewpoint. While the Court agreed that the President’s “@realDonaldTrump” account was formally private in a way that his “@POTUS” account was not, it nonetheless held that, because the President used the account to discuss issues related to his official role as President, it effectively was a government account. Furthermore, when he invited public comment, Trump created a limited or designated public forum, and access to it could not be denied based on content or viewpoint. (Knight First Amendment Institute v Trump (2019) 928 F.3d 226.) However, of special note for this bill, Knight First Amendment Institute did not hold that social media platforms, as such, constitute a public forum, limited or otherwise. Rather, what made Trump’s Twitter account a limited public forum was the fact that he, in his role as President, used it to comment on public issues and thereby transformed it into a limited public forum.

Prior to Knight First Amendment Institute, forum analysis of the First Amendment applied only to public property. For better or worse, the prior case law treated social media platforms as private property, and, with the exceptions discussed below, there is no First Amendment right to speak or assemble on private property. Justice Clarence Thomas recently joined fellow members of the U.S. Supreme Court to dismiss the continuing litigation of the Knight case as moot (since Trump is no longer president and the account has been suspended). Justice Thomas nonetheless wrote separately to note how recent court decisions on social media platforms as public forums have produced an odd result. That is, while the courts have held that a government-operated social media account is a designated public forum, and therefore cannot block users because of content or viewpoint, a private social media corporation nonetheless has the power to shut down a privately operated but otherwise public forum entirely. (Biden v. Knight First Amendment (2021) 593 U.S. ___, slip at 2-3, Thomas, J., concurring.) It is indeed rather extraordinary that a private corporation has the power to shut down what the government and courts have deemed to be a public forum.

PruneYard: Private property and free speech rights under California law. While the First Amendment does not guarantee a right to speak on private property, both the California Supreme Court and the United States Supreme Court have recognized a limited exception to this rule. At one point, it appeared that the U.S. Supreme Court might protect free speech rights on private property under very limited circumstances. In Marsh v Alabama (1946) 326 U.S. 501, the U.S. Supreme Court held that the managers of a “company town” could not prevent Jehovah’s Witnesses from distributing literature in Chickasaw, Alabama. Although the “town” was on private property, owned and managed by the Gulf Shipbuilding Company, its downtown businesses were open to the public generally. The Court held that the “more an owner, for his advantage, opens up his property for the use of the public in general, the more do his rights become circumscribed by the constitutional and statutory rights of those who use it.” The Court reasoned, as well, that when a formally private company town performed a traditional “public function,” it could be bound by the same constitutional limitations. In this limited sense, the managers of a company town could be held to the same restrictions as the public officials of a publicly incorporated city or town.

The continuing relevance and scope of the Marsh decision is uncertain. In Amalgamated Food Employees Union v. Logan Valley Plaza (1968) 391 U.S. 308, the U.S. Supreme Court appeared to follow Marsh in holding that a privately owned shopping center could not prevent strikers from picketing a store within the shopping center. That is, the shopping center, like the commercial district in the company town, was generally open to the public and, to that extent, took on features of public streets that constitute a “traditional” or “quintessential” public forum. However, in Lloyd Corp. v Tanner (1972) 407 U.S. 551, the Court held that a shopping center could exclude anti-Vietnam War protesters.

One distinction between Logan Valley and Tanner, is that the striking workers in Logan Valley had to enter the shopping center to picket the store with which they had a dispute, whereas the anti-war protesters in Tanner had no such necessary connection to the shopping center or any store within it. However, as Erwin Chemerinsky has argued, while there may be a practical reason for this distinction, there is no good constitutional reason for the differing outcomes of Logan Valley and Tanner. If the shopping center becomes the equivalent of a public street when it is open to the general public, the only reason for excluding the anti-war protesters (as opposed to the strikers) is because of the content of their speech, which is not a valid constitutional justification. Attempting to resolve the conflict between Logan Valley and Tanner, in Hudgens v. National Labor Relations (1976) 424 U.S. 507 the Court overturned Logan Valley, holding that the First Amendment does not apply to private shopping centers, regardless of the content of the speech. (See Chemerinsky, Constitutional Law, pp. 521-522.)

However, California courts were not quite finished with the question of free speech rights in private shopping centers. In 1975, a group of high school students set up a table in the PruneYard Shopping Center in Campbell, California, asking shoppers to sign a petition expressing opposition to a United Nations resolution against Zionism. After a security guard forced the students to leave the shopping center, the students sued the shopping center owners in Santa Clara County Superior Court, alleging that their removal violated their free speech rights under the California Constitution. The students sought an injunction that would allow them to continue their activity. The shopping center asserted their right as property owners to exclude the students and, additionally, argued that forcing property owners to allow the students’ activity was a form of “compelled speech” and thus violated the shopping centers’ First Amendment rights, as well as their property rights. Although the superior court dismissed the students’ free speech claims, the California Supreme Court reversed. (Robins v. PruneYard Shopping Center (1979) 23 Cal.3d 899.)

In reversing the lower court ruling, the California Supreme Court noted that the free speech provisions of the California constitution – unlike the First Amendment, with its clear assertion that “Congress shall make no law” – simply assert that, “every person may freely speak, write, and publish his or her sentiments, being responsible being responsible for the abuse of this right. A law may not restrain or abridge liber of speech or press.” (California Constitution, Article I, Section 2.) Although the second sentence of the California provision, like the First Amendment, prohibits “laws” that abridge speech, the first sentence simply declares that every person has the right to speak freely, without regard to the public or private nature of anyone or any entity that might interfere with that right. In support of this position, the California Supreme Court cited its earlier decision in In Re Hoffman (1967) 67 Cal.2d 845, which upheld the right of anti-war protesters to distribute leaflets at Los Angeles Union Station. Even though the station was owned by three private companies, the Court concluded that, “a railway station is like a public street or park.” (Id. at 851.) The Hoffman decision affirmed, the California Supreme Court wrote in PruneYard, “the public interest in peaceful speech outweighs the desire of property owners for control over their property.” (PruneYard, supra, 13 Cal.3d at 909; see also In re Cox (1970) 3 Cal.3d 205, 217-218 [holding that a “shopping center may no more exclude individuals who wear long hair . . . who are black, who are members of the John Birch Society, or belong to the American Civil Liberties Union, merely because of these characteristics or associations, than the City of San Rafael”].)

The U.S. Supreme Court upheld the ruling of California’s high court. While acknowledging its prior ruling in Tanner, expressly holding that the First Amendment does not protect speech in a private shopping center, the U.S. Supreme Court nonetheless held that a state could, in the exercise of its police power, adopt individual liberties under its own constitution that were more expansive than those recognized by the U.S. Constitution. A state constitution that protects free speech from both public and private infringement does not conflict with the First Amendment, after all, because it still met the First Amendment requirement prohibiting public infringement. The California Constitution simply went beyond this by protecting free speech from both private and public infringement. The U.S. Supreme Court did not entirely dismiss the countervailing property rights and First Amendment claims of the shopping center. It accepted that one of the essential “sticks” in the “bundle of sticks” that constitute property rights was the “right to exclude.” However, this right is not absolute, especially where property is held open to the general public for the advantage of the property owner. The shopping center also claimed that forcing it to host the student speech was a form of “compelled speech,” and therefore violated the shopping center’s own First Amendment rights. However, the U.S. Supreme Court, agreeing with the California Court, reasoned that no reasonable person would assume that the shopping center owners, or any of the stores within the center, agreed with the views held by the students. Thus, permitting the student’s activity did not amount to compelling speech.

This bill seeks to build upon PruneYard’s holding that the California Constitution, under certain circumstances, protects free speech from abridgement by private actors on private property that is open to the public. However, declaring that the social media platform is as much of a “traditional First Amendment forum” as a private shopping ignores the narrow holding and reasoning of PruneYard. That case and others finding a right to free speech on private property have all stressed that the private property at issue was the virtual equivalent of public streets and public squares. For example, in the days before the shopping center, stores and other businesses fronted public streets. In a strip mall or shopping center, on the other hand, stores and businesses are removed from public streets and adjoin private property. Thus, the private walkways and the parking lot of a shopping center are the functional equivalent of public streets that once brought the public to the door of the business, just as the common areas of suburban malls and shopping centers have to some extent replaced the downtown public square. However, when it comes to social media platforms, there is really no “traditional” forum that they displace. They are novel forums, and there is no traditionally public property that they resemble or replace. The author is no doubt correct that the law has not kept pace with social media, but social media platforms have no traditional public corollary or functional equivalent, at least not in the same way that private shopping centers act as the corollary and functional equivalent of public streets.

Another problem with relying upon PruneYard to justify the limited public forum provision in this bill is that the reach of the decision was substantially narrowed by a more conservative California Supreme Court in Golden Gateway Center v. Golden Gateway Tenants Association (2001) 26 Cal.4^th 1013. In that case, the owner of a private apartment complex brought an action to enjoin a tenants association from distributing an unsolicited newsletter to apartments in the complex, and the tenants association cross-complained, alleging that, under PruneYard, it had a constitutional right to leaflet the building, even though the building was privately owned. The trial court sided with the tenants, but the Court of Appeal and the California Supreme Court both sided with the owner of the apartment complex. Although the Court’s 4-3 ruling did not produce a single majority opinion, the plurality opinion appeared to sneak in a “state action” requirement that PruneYard had expressly rejected. The lead opinion in Golden Gateway held that the California Constitution required at least the functional equivalent of state action, and that the actions of a private property owner constitute state action only if the property is freely and openly accessible to the public. The Court’s lead opinion reasoned that the apartment complex, unlike the shopping center, was not open to the public, but was rather limited to the residents and their invitees. In dissent, Justice Werdegar followed what seemed to be the clear holding in PruneYard – that the framers of California’s free speech clause “drew no distinction, among those who might seek to obstruct such activities, between state and private actors.” (Golden Gateway, supra, at 1045.) Thus, in evaluating the aptness of declaring a social media platform to be a “traditional First Amendment forum” within the meaning of PruneYard, one would need to determine whether a social media platform was more like a shopping center, open to all, or more like an apartment complex, open only to users and their invitees. Some social media platforms are open to all; others require the person open an account. Again, the novelty of the social media platform makes it difficult to say which type of physical space the social media platform most resembles.

What about the social media platform’s free speech rights? In addition to the logical difficulty of recasting social media platforms as the functional equivalent of a traditional public forum, this bill also raises questions about the free speech rights of the social media platforms themselves. While we may reasonably question the premise that large, private corporations are “persons” with constitutional rights, the Courts have, for better or worse, held that private corporations have First Amendment rights. (Citizens United v Federal Election Commission (2010) 558 U.S. 310.) In other words, a social media platform – whether operated by an individual, a corporation, or non-profit group – is a private entity that has expressive rights of its own, and creating a platform that is generally open to users does not mean that the entity loses those expressive rights. For example, would a social media platform operated by a right-to-life group be forced to post content on its site that advocated an absolute right to abortion? Conversely, would a social media platform operated by a pro-choice group be required to post content by right-to-life groups? While most social media platforms are not dedicated to single-issue advocacy, they may nonetheless opt not to be associated with material that they find objectionable or contrary to any message or viewpoint that they seek to express. For example, H-Net is a social media platform that allows academic historians to exchange ideas, essays, book reviews, and syllabi, among other things. Would this cite be forced to post an essay by a scholar denying the Holocaust? As a private entity, does not H-Net have the right not to associate with views that it finds repugnant? To be sure, a government entity that opened a designated forum to discuss issues of historical interpretation, or any other issue, could not block material based on viewpoint alone, but it would seem that a private entity’s rights of speech and association would allow it to remove content with which it does not wish to be associated.

To be sure, under PruneYard – and even under Golden Gateway – one could argue that once a social media platform opens its space to the public generally, postings by users could not be imputed to the social media platform and, as such, those user postings would not likely violate the free speech rights of social media platform as “compelled speech.” Nonetheless, the free speech rights of users of social media platform must at least be balanced against the recognized free speech rights of the private social media platforms. After all, under the government speech doctrine, even government has rights as a speaker and can assert its own ideas and craft its own messages. (See e.g. Johanns v. Livestock Marketing Assn. (2005) 544 U.S. 550.) If this bill is premised upon the notion that a social media platform that opens itself to the public is the functional equivalent of a state actor, it is important to recall that even state actors have rights of free expression.

Are there alternatives to declaring social media platforms a traditional public forum? Without going so far as declaring social media platforms to be a traditional public forum, one could attempt to create more open social media platforms by treating them like radio and television broadcasts and imposing something akin to the old “Fairness Doctrine,” which was effectively abandoned by the Federal Communication Commission (FCC) in 1987 (though the FCC did not officially remove the rule until 2011).

The Fairness Doctrine did not make private radio and television broadcasters a public forum, but it did require holders of broadcast licenses to present controversial issues of public interest, and to do so in a fair and balanced manner. (This is distinct from the “equal time” rule that applies to air time for candidates for public office.) The U.S. Supreme Court upheld the Fairness Doctrine in Red Lion Broadcasting v. FCC (1969) 395 U.S. 367. However, the Court also stressed that the FCC was not obliged to have such a rule. Limited radio and television airwaves, at the time, were one justification for the doctrine, and accordingly the rule did not apply to print media. (See Miami Herald Publishing Co. v. Tornillo (1974) 418 U.S. 241.) The rise of cable television, which does not face the same problem of limited airwaves, also raised questions about the rationale underlying the Fairness Doctrine. Although there have been recent efforts to revive the Fairness Doctrine (e.g. Rep. Tulsi Gabbard’s H.R. 4401), it is not clear that it will be revived anytime soon. Even if there were a restored Fairness Doctrine it is unclear whether it would apply to social media platforms, given that they do not face the same limited airwave problem. Moreover, using the Fairness Doctrine to address the problem of allegedly “biased” social media platforms may not fly politically, given that political conservatives who have been the most critical of alleged social media bias have also been the most staunchly opposed to reviving the Fairness Doctrine. (For diametrically opposing views on applying the Fairness Doctrine to the internet, cf. April Glasser, “Bring Back the Golden Age of Broadcast Regulation,” Slate.com June 6, 2019, with Paul Matzko, “The Fairness Doctrine was Terrible for Broadcasting and It Would be Terrible for the Internet,” Cato.org, June 12, 2019.)

This bill is likely preempted by Section 230 of the federal Communications Decency Act. Whatever the wisdom of treating social media platforms as traditional public forums, it seems likely that this bill, if enacted, would be preempted by the immunity provisions in Section 230 of the Communications Decency Act (47 U.S.C. Section 230), and in particular Section 230 (c)(2). Although the Section 230 immunity provisions have been subject to criticisms from both ends of the political spectrum, it is important to note that Section 230 (c) contains two distinct, and arguably contradictory, immunity provisions. First, paragraph (1) of Section 230 (c) provides that any provider of an “interactive computer service” (which would include social media platforms) are immune from liability, subject to certain exceptions, for any harm caused by content that is posted by third parties. Whereas a newspaper could be held jointly liable for false and defaming statements in an advertisement or opinion written by a third party, a social media platform is not similarly liable for content posted by a third party. This immunity is premised on the notion that, unlike the newspaper, a social media platform or other interactive computer service is not a “publisher” that exercises an editorial function.

At the same time – and most relevant to this bill – paragraph (2) of Section 230 (c) provides that a social media platform is immune from liability when it restricts access to, or availability of, material that the provider considers obscene or “otherwise objectionable, whether or not such material is constitutionally protected.” Curiously, and perhaps inconsistently, while paragraph (1) is premised upon the notion that the social media platform or interactive computer service does not perform an editorial function, paragraph (2) presumes that they do, and in fact protects them from liability from any third party who might challenge their right to remove or block access to posted content. In short, social media platforms enjoy the best of both worlds. They are immune from liability if they allow an objectionable and harmful posting; and they are immune from liability if they remove it.

Whatever the logic (or lack thereof) of the immunities afforded by Section 230 (c), this bill’s declaration that social media platforms would be treated as traditional public forums would likely be preempted by federal law. That is, presumably the point of making social media platforms a public forum is to permit someone whose speech is infringed by a social media platform to bring an action alleging a free speech infringement against the social media platform. However, Section 230 (c)(2) expressly states that the platform can block access to any content that it deems “otherwise objectionable, whether or not such material is constitutionally protected [emphasis added]. In other words, this bill would only permit platforms to have a policy for removing “unprotected” speech and, by declaring platforms a public forum, would not allow them to remove “protected” speech. But federal law permits the platform to block access to any objectionable content, whether constitutionally protected or not. In short, if Section 230 (c)(2) does not clearly preempt this bill, it would certainly preempt any free speech action brought pursuant to the bill.

Pending SCOTUS decision on Section 230. Of course, no one knows for sure if the courts would find that this bill, if enacted, is preempted by Section 230. Just last month the U.S. Supreme Court heard oral arguments in the case of Gonzalez v. Google, a case stemming from a wrongful death action brought by the parents a 23-year old college student killed by an Islamic State (ISIS) gunman in Paris in 2015. The lawsuit claims that Google contributed to their child’s death by using algorithms that recommended ISIS videos to the killer. Google counters that it is immune under Section 230, which shields it from any harms caused by content posted by a third party. While most commentators agree that the Supreme Court could substantially, even radically, change the scope of Section 230, what those changes will be remain unclear. The author may wish to wait for the U.S. Supreme Court to issue its holding on the scope of Section 230, for that will go a long way toward determining the likely preemption question. (See e.g. “Supreme Court Considers if Google is Liable for recommending ISIS Videos,” Washington Post, February 21, 2023.)

ARGUMENTS IN OPPOSITION: In their joint letter of opposition, TechNet, the California Chamber of Commerce, and the Internet Coalition – representing mostly social media companies – argue that AB 836 “would impede companies’ ability to moderate illegal content on their platforms and expose users to many forms of harmful speech, in a manner that not only violates First Amendment law, wasting judicial resources to litigate the issue, but that also conflicts with recent social media related laws passed by the California Legislature. Our member companies share your interest in fostering diverse online discourse. However, that interest is not served if they are required to host all constitutionally protected content.” More specifically, they make three central arguments. First, they claim that this bill “runs afoul of the First Amendment” because the companies regulated have the right to moderate content as part of their own expressive freedom. Second, they argue that the bill is preempted by Section 230 of Communications Decency Act. Third, they argue that the bill is inconsistent with recent California legislation that has attempted to make social media more accountable to users and consumers.

The Media Alliance opposes this bill for many of the reasons stated above, but adds that “Assembly Bill 836 is a misguided measure that is contrary to several recent significant court rulings in the federal courts. The bill reflects the growing frustration with social media’s somewhat inept content moderation policies, which is a frustration that we share. But AB

836 is not the right solution.” The Media Alliance cites case law reasonably finding that merely hosting the content of others does not transform a social media company into a state actor and it does not replicate any traditional public function.

Prior Legislation. This bill is nearly identical to AB 1114 (Gallagher), which this Committee heard in 2021. That bill passed out of this Committee but only with the public forum provision removed, leaving only the provision requiring social media platforms to develop policies related to unprotected speech. The bill was never heard in the Assembly Committee on Arts, Entertainment, Sports, Tourism, and Internet Media.

REGISTERED SUPPORT / OPPOSITION:

Support

None on file

Opposition

California Chamber of Commerce

Chamber of Progress

Internet Coalition

Media Alliance

Technet (Technology Network)

Analysis Prepared by: Tom Clark / JUD. / (916) 319-2334