Is California censoring Elon Musk's X? What lawsuit could mean for social media regulation.

The dichotomy between blue and red states – in essence California vs. Florida and Texas – has played out in many arenas on many specific issues, including immigration and abortion.

The whole nation will get a full dose of the running conflict next month when California Gov. Gavin Newsom, a Democrat obsessed with building a national image, debates Florida Gov. Ron DeSantis, a declared 2024 Republican candidate for president, on national television.

Meanwhile, an ironic twist to the rivalry has developed over how the competing states seek to force social media companies, such as X (formerly Twitter) and Facebook, to toe the official line on content that runs afoul of their very different ideological outlooks.

The Supreme Court looks at Florida and Texas

When it reconvened last month, the U.S. Supreme Court agreed to examine laws in Florida and Texas that would prohibit social media outlets from barring controversial political speech. The laws were enacted after both Facebook and Twitter suspended former President Donald Trump's account.

The Texas law, now on hold, would classify social media companies as common carriers such as public utilities and require them to disclose their “moderation standards” affecting what they allow to be posted, and declare why they remove certain conduct.

The Florida law – similar in thrust – would prohibit banning certain users, such as journalists or politicians, and require social media companies to explain the rationale for each instance of content moderation.

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In both cases, the social media companies say Florida and Texas are attempting to control how they edit their platforms in violation of the Constitution’s right to freedom of speech.

“At bottom, government ‘may not … tell Twitter or YouTube what videos to post; or tell Facebook or Google what content to favor,’” Scott Keller, an attorney for internet trade groups, told the court in a petition.

The California lawsuit by X, formerly Twitter

The issues before the Supreme Court are remarkably similar to a lawsuit filed in federal court last month by X Corp. against California, alleging that a 2022 law violates its free speech right as well.

The law, Assembly Bill 587, also bores into the standards that social media use to moderate content, requiring them to make extensive disclosures to California's Department of Justice. The measure was supported by the Anti-Defamation League and is aimed at pressuring the social media companies to remove what the state deems to be hate speech.

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X Corp. claims that Assemblyman Jesse Gabriel's law violates the First Amendment because it interferes with social media companies' constitutionally protected editorial judgements, requires them to post terms “dictated by the government,” and pressures them to remove content the state “deems undesirable or harmful.”

Fundamentally, then, while Texas and Florida accuse social media platforms of being too eager to censor inflammatory content, the California law implies that they are not eager enough.

California, meanwhile, has rolled back another censorship law passed last year.

Assembly Bill 2098 threatened doctors with losing their licenses for “unprofessional conduct” if they openly disagreed with officialdom on the nature of COVID-19 or the vaccines used to battle the pandemic.

This year, a few words that repealed the law were slipped into an omnibus medical licensing measure, Senate Bill 815, that Newsom quietly signed. The repeal short-circuited what could have been another legal battle over censorship and the First Amendment and is a lesson about legislating without considering effects on constitutional rights.  

Dan Walters is an opinion columnist with CalMatters, a public interest journalism venture committed to explaining how California's state Capitol works and why it matters. This column first published in the Ventura County Star.