A controversial bill awaiting California Democratic Gov. Gavin Newsom’s signature would slap steep new penalties on social media platforms that fail to censor content deemed in violation of the state’s civil rights laws.
SB 771, which passed both chambers of the state legislature and was sent to Newsom’s desk on Monday, imposes fines of up to $1,000,000 on social media platforms that fail to remove content that violates the state’s civil rights laws. Critics warn the measure will lead to sweeping censorship of lawful speech.
Lawmakers defended SB 771 by citing “rising incidents of hate-motivated harm,” including “hate crimes involving anti-immigrant slurs.” The bill’s text also references data from the Human Rights Campaign and the Center for Countering Digital Hate (CCDH), showing a 400% rise in “anti-LGBTQ+ disinformation and harmful rhetoric on major social media platforms.”
“If people think platforms remove their content too much now, they should expect to see the pattern significantly intensify with this law,” Shoshana Weissmann, director of digital media at the R Street Institute, told the Daily Caller News Foundation. “Rather than risk liability for showing users content one could argue (even if it doesn’t actually) violate a law, platforms will over-moderate and remove posts in order to stay out of court.”
Under the proposed law, platforms with $100 million or more in annual revenue could face $1 million in fines if they intentionally, knowingly, or willfully “relay” content that violates state law through their algorithms. Companies found to be in reckless violation could face penalties of up to $500,000.
“Courts have recognized that algorithms are protected by the First Amendment, so punishing sites for using algorithms to deliver free speech would run into problems,” Weissmann said. “Further, the law doesn’t limit which kinds of algorithms would cause platforms to be held liable for user speech. This means even showing content in the order it was posted would have this effect under the law, as ‘reverse chronological order’ is an algorithm.”
“The purpose of this act is not to regulate speech or viewpoint but to clarify that social media platforms, like all other businesses, may not knowingly use their systems to promote, facilitate, or contribute to conduct that violates state civil rights laws,” the bill states.
Yet opponents argue the law would inevitably drive platforms to remove lawful content out of fear of massive fines.
“By exposing these companies to civil liability for content they do not remove, SB 771 creates a chilling effect on their editorial discretion. The significant, prescribed civil penalties — potentially amounting to the billions for each violation — would lead platforms to over-remove lawful content to mitigate legal exposure,” the California Chamber of Commerce, the Computer and Communications Industry Association and TechNet wrote in their opposition to the bill.
“This violates the First Amendment rights of users and social media platforms,” they added.
Weissman added that platforms may also find it challenging to differentiate sarcasm, serious posts and sincere discussions about sensitive subjects, adding that over-removing content will be the only way they will be able to avoid liability.
The bill has strong backing from the George Soros-funded CCDH, which has repeatedly advocated for the censorship of conservative outlets and figures.
In 2021, CCDH released a report called “The Toxic Ten” demanding Facebook and Google demonetize conservative sites such as The Daily Wire, Breitbart, Newsmax, The Washington Times and Media Research Center for spreading so-called climate “misinformation.” Emails obtained by the House Judiciary Committee also revealed that the Biden White House used a separate CCDH called “Disinformation Dozen” to pressure Facebook to censor the accounts of those critical of vaccine guidelines.
CCDH did not respond to the Daily Caller News Foundation’s request for comment.
The bill is supported by other groups that promote action against “disinformation,” including the California Initiative for Technology & Democracy, as well as over a dozen Jewish organizations. However, it has also drawn opposition from a coalition on the left, including Voices for Justice in Palestine, the California chapter of the Council on American-Islamic Relations, Code Pink, IfNotNow California and Queers Undermining Israeli Terrorism.
If enacted, critics say SB 771 would likely face legal scrutiny under Section 230 of the Communications Decency Act, which shields platforms from being held liable for user-generated content.
The Golden State has been at the forefront of efforts to regulate so-called “hate speech,” though it has been forced to walk back some measures after constitutional challenges.
In August, a federal court struck down two California laws — AB 2839 and AB 2655 — after the satire site Babylon Bee filed suit. AB 2839 barred people from posting “materially deceptive content” during election time and required disclaimers on satirical posts, while the latter required online platforms to label, and in some cases remove, posts deemed to be “materially deceptive” about elections.
The state agreed in February to stop enforcing parts of a 2022 law that compelled platforms to disclose how they moderate what the statute described as “hate speech,” “extremism” or “disinformation,” following a legal settlement with Elon Musk’s X Corp.
Meanwhile, Google, YouTube’s parent company, admitted Tuesday that Biden administration officials repeatedly “pressed” it to remove video content that did not violate company policy, but was nonetheless deemed by the administration to be “misinformation.”
Meta shut down its fact-checking program across Facebook and Instagram in April, marking a victory for conservatives who long accused Meta’s third-party fact-checking partners of ideological bias and collusion with government agencies to suppress dissenting views.
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