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24-271

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

X CORP.,
Plaintiff-Appellant,

v.

ROB BONTA, Attorney General of California,

in his official capacity,
Defendant-Appellee.

On Appeal from the United States District Court

for the Eastern District of California

No. 2:23-CV-01939-WBS-AC
William B. Shubb, Judge

ANSWERING BRIEF

ROB BONTA GABRIELLE D. BOUTIN

Attorney General of California Deputy Attorney General
THOMAS S. PATTERSON 1300 I Street, Suite 125
Senior Assistant Attorney General P.O. Box 944255
ANTHONY R. HAKL Sacramento, CA 94244-2550
Supervising Deputy Attorney General Telephone: (916) 210-6053
Fax: (916) 324-8835
Email: [email protected]
Attorneys for Defendant-Appellee
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TABLE OF CONTENTS

Page

Introduction .................................................................................................... 1
Jurisdictional Statement ................................................................................. 2
Statement of Issues ........................................................................................ 2
Circuit Rule 28.2.7 Statement ........................................................................ 3
Statement of the Case .................................................................................... 3
I. Factual and Legal Background ................................................. 3
A. Social Media Content Moderation and the
NetChoice Cases ............................................................. 3
B. California Assembly Bill 587 ......................................... 6
II. Procedural Background ........................................................... 11
A. X Corp.’s Complaint and Motion for a Preliminary
Injunction ...................................................................... 11
B. The District Court’s Order Denying X Corp.’s
Motion for a Preliminary Injunction ............................. 12
Standard of Review ...................................................................................... 14
Summary of the Argument .......................................................................... 15
Argument ..................................................................................................... 19
I. The District Court Correctly Ruled That X Corp. Is
Unlikely to Succeed on Its First Amendment Claim .............. 19
A. The Zauderer Test for Commercial Disclosures
Applies to AB 587 ........................................................ 19
1. AB 587 regulates commercial speech ................ 19
2. AB 587’s required disclosures are “purely
factual”................................................................ 27
3. AB 587’s required disclosures are
“uncontroversial” ................................................ 30

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TABLE OF CONTENTS
(continued)
Page

4. AB 587 requires the disclosure of

information about the terms under which
social media platforms’ services are made
available to the public ......................................... 33
B. AB 587 Satisfies Zauderer Scrutiny ............................. 34
1. AB 587’s requirements are reasonably
related to a substantial state interest ................... 35
2. AB 587’s requirements are not unjustified or
unduly burdensome ............................................ 37
C. Alternatively, AB 587’s Challenged Provisions
Are Permissible Under Central Hudson ....................... 38
1. AB 587 serves a substantial government
interest in social media platform
transparency ........................................................ 40
2. AB 587 directly advances the interest in
social media platform transparency .................... 41
3. AB 587 is not “more extensive that
necessary” to serve the interest in social
media platform transparency .............................. 42
D. AB 587 Is Not Subject to Strict Scrutiny ..................... 44
1. Strict scrutiny does not apply to “content-
based” laws in the context of commercial
speech or disclosures subject to Zauderer
review ................................................................. 44
2. AB 587’s disclosure requirements are
viewpoint neutral ................................................ 45
3. The “editorial judgments” theory does not
apply to AB 587.................................................. 48

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TABLE OF CONTENTS
(continued)
Page

4. AB 587 is not analogous to the laws

challenged in X Corp.’s “speech about
speech” cases ...................................................... 52
II. The District Court Correctly Ruled That X Corp. Is
Unlikely to Succeed on its Federal Preemption Claim ........... 54
A. X Corp.’s Preemption Claim Is Unripe ........................ 55
B. Even if X Corp.’s Preemption Claim Were Ripe, It
Fails on the Merits ........................................................ 57
III. The District Court Correctly Ruled That X Corp. Has Not
Established the Remaining Winter Factors Necessary For
Preliminary Injunctive Relief .................................................. 62
Conclusion ................................................................................................... 63
Statement of Related Cases.......................................................................... 64

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TABLE OF AUTHORITIES

Page

CASES
All. for the Wild Rockies v. Cottrell
632 F.3d 1127 (9th Cir. 2011) ........................................................... 14, 41

Am. Fuel & Petrochem. Mfrs. v. O’Keefe

903 F.3d 903 (9th Cir. 2018) ................................................................... 47

Am. Hosp. Ass’n v. Azar

983 F.3d 528 (D.C. Cir. 2020)........................................................... 22, 35
Am. Meat Inst. v. U.S. Dep’t of Agric.
760 F.3d 18 (D.C. Cir. 2014) ....................................................... 32, 35, 48

Anderson v. Edwards
514 U.S. 143 (1995)................................................................................. 61
Animal Legal Defense Fund v. Wasden
878 F.3d 1184 (9th Cir. 2018) ................................................................. 45
Ariix, LLC v. NutriSearch Corp.
985 F.3d 1107 (9th Cir. 2021) ........................................................... 19, 20
Bass v. Facebook, Inc.
394 F. Supp. 3d 1024 (N.D. Cal. 2019) ................................................... 23

Bd. of Trustees of State Univ. of N.Y. v. Fox

492 U.S. 469 (1989)................................................................................. 42
Bolger v. Youngs Drug Prod. Corp.
463 U.S. 60 (1983)................................................................. 20, 21, 22, 25

Book People, Inc. v. Wong

91 F.4th 318 (5th Cir. 2024) ........................................................ 29, 53, 54

Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y.
447 U.S. 557 (1980)..................................................................... 17, 38, 39

iv
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TABLE OF AUTHORITIES
(continued)
Page

Chamber of Com. of U.S. v. Whiting

563 U.S. 582 (2011)................................................................................. 59

City of Los Angeles v. Alameda Books, Inc.

535 U.S. 425 (2002) ................................................................................ 39

CTIA - The Wireless Ass’n v. City of Berkeley

928 F.3d 832 (9th Cir. 2019) ............................................................ passim

DBSI/TRI IV Ltd. P’ship v. United States

465 F.3d 1031 (9th Cir. 2006) ................................................................. 55
Doe v. Internet Brands, Inc.
824 F.3d 846 (9th Cir. 2016) ................................................. 57, 58, 59, 60

Edenfield v. Fane
507 U.S. 761 (1993)................................................................................. 41

Entertainment Software Ass’n v. Blagojevic

469 F.3d 641 (7th Cir. 2006) ............................................................. 53, 54
First Resort, Inc. v. Herrera
860 F.3d 1263 (9th Cir. 2017) ............................................... 20, 22, 45, 46

Fla. Bar v. Went For It, Inc.

515 U.S. 618 (1995)................................................................................. 41

Greater Baltimore Ctr. for Pregnancy Concerns, Inc. v. Mayor

& City Council of Baltimore
721 F.3d 264 (4th Cir. 2013) ................................................................... 44

Greater New Orleans Broad. Ass’n, Inc. v. United States

527 U.S. 173 (1999)................................................................................. 42

Herbert v. Lando
441 U.S. 153, 174 (1979) ........................................................................ 51

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TABLE OF AUTHORITIES
(continued)
Page

Informed Consent Action Network v. YouTube, Inc.

582 F. Supp. 3d (N.D. Cal. 2022) ...............................................................4

Interpipe Contracting, Inc. v. Becerra

898 F.3d 879 (9th Cir. 2018) ................................................................... 46

Jordan v. Jewel Food Stores, Inc.

743 F.3d 509 (7th Cir. 2014) ................................................................... 20

King v. Facebook, Inc.

572 F.Supp.3d 776 (2021) ....................................................................... 23
Miami Herald v. Tornillo
418 U.S. 241, 244 (1974) ........................................................................ 51

Moody v. NetChoice, LLC

144 S. Ct. 478 (2023)............................................................................. 4, 6

Motion Picture Ass’n of Am. v. Specter

315 F. Supp. 824 (E.D. Pa. 1970) ...................................................... 53, 54
N.Y. State Rest. Ass’n v. N.Y.C. Bd. of Health
556 F.3d 114 (2d Cir. 2009) .................................................................... 48

Nat’l Elec. Mfrs. Ass’n v. Sorrell

272 F.3d 104 (2d Cir. 2001) ........................................................ 21, 32, 35

Nat’l Inst. of Fam. & Life Advocs. v. Becerra

585 U.S. 755 (2018)............................................................... 19, 22, 34, 44

Nat’l Wheat Growers Assn. v. Bonta

85 F.4th 1263 (9th Cir. 2023) ................................................ 22, 30, 32, 39
Nationwide Biweekly Admin., Inc. v. Owen
873 F.3d 716 (9th Cir. 2017) ....................................................... 17, 37, 44

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TABLE OF AUTHORITIES
(continued)
Page

NetChoice, LLC v. Att’y Gen.

34 F.4th 1196 (11th Cir. 2022) ......................................................... passim

NetChoice, LLC v. Moody

144 S. Ct. 69 (2023)....................................................................................4

NetChoice, LLC v. Paxton

144 S. Ct. 477 (2023)............................................................................. 4, 6

NetChoice, LLC v. Paxton

49 F.4th 439 (5th Cir. 2022) ............................................................. passim
O’Handley v. Padilla
579 F. Supp. 3d 1163 (N.D. Cal 2022) .......................................................3

Red Top Mercury Mines, Inc. v. United States

887 F.2d 198 (9th Cir. 1989) ....................................................... 50, 51, 61

Reed v. Town of Gilbert

576 U.S. 155 (2015)................................................................................. 45
S.E.C. v. AT&T, Inc.
626 F. Supp. 3d 703 (S.D.N.Y. 2022) ..................................................... 45

S.F. Apartment Ass’n v. City & Cnty. of S.F.

881 F.3d 1169 (9th Cir. 2018) ................................................................. 48

Smith v. California
361 U.S. 147 (1959)................................................................................. 53

Swift v. Zynga Game Network, Inc.

805 F. Supp. 2d 904 (N.D. Cal. 2011) ..................................................... 23
Turner Broad. Sys., Inc. v. F.C.C.
520 U.S. 180 (1997)........................................................................... 37, 39

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TABLE OF AUTHORITIES
(continued)
Page

United States v. Edge Broad. Co.

509 U.S. 418 (1993)................................................................................. 39

United States v. O'Brien

391 U.S. 367 (1968)................................................................................. 46

United States v. Salerno

481 U.S. 739 (1987)................................................................................. 61

United States v. Swisher

811 F.3d 299 (9th Cir. 2016) ................................................................... 44
Valle Del Sol Inc. v. Whiting
709 F.3d 808 (9th Cir. 2013) ............................................................. 42, 43

Video Software Dealers Ass’n v. Schwarzenegger

556 F.3d 950 (9th Cir. 2009) ................................................................... 37

Volokh v. James
656 F. Supp. 3d 431 (S.D.N.Y. 2023) ............................................... 22, 38
Washington Post v. McManus
944 F.3d 506 (4th Cir. 2019) ............................................................. 51, 52

Winter v. Nat. Res. Defense Council, Inc.

555 U.S. 7 (2008)......................................................................... 14, 18, 62

Wolfson v. Brammer
616 F.3d 1045 (9th Cir. 2010) ............................................... 18, 55, 56, 57

X Corp. v. Bonta
No. 2:23-cv-01939-WBS-AC (E.D. Cal. Sept. 8, 2023) ......................... 11
Yuksel v. Twitter, Inc.
No. 22-cv-05415-TSH, 2022 WL 16748612 (N.D. Cal. Nov.
7, 2022) .......................................................................................................4

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TABLE OF AUTHORITIES
(continued)
Page

Zauderer v. Office of Disciplinary Counsel

471 U.S. 626 (1985).......................................................................... passim

STATUTES
28 U.S.C.
§ 1292(a)(1) ................................................................................................2
§ 1331 .........................................................................................................2

47 U.S.C. § 230(c) ................................................................................. passim

Cal. Bus. & Prof. Code
§ 22675(d) ...................................................................................................7
§ 22676 ............................................................................................. passim
§ 22676-22678 ............................................................................................1
§ 22677 ............................................................................................. passim
§ 22677(a)(1)-(5) ............................................................................... 33, 36
§ 22677(a)(3) ........................................................................................... 26
§ 22677(a)(4) ..............................................................................................9
§ 22677(a)(5) ........................................................................................... 33
§ 22677(a)(5)(A) ...................................................................................... 29
§ 22677(a)-(b) .............................................................................................8
§ 22677(b)(2) ..............................................................................................8
§ 22677(c) ................................................................................................ 23
§ 22678 ...................................................................................... 7, 9, 10, 11
§ 22678(a)(2) ..................................................................................... 49, 60
§ 22680 .......................................................................................................7

Fla. Stat. Ann. § 501.2041 ............................................................................ 24

Tex. Bus. & Com. Code Ann. § 120.053(a)(2), (b)(1) ........................... 24, 25

CONSTITUTIONAL PROVISIONS
First Amendment ................................................................................... passim

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TABLE OF AUTHORITIES
(continued)
Page

COURT RULES
Federal Rule of Appellate Procedure 4(a)(1)(B)(i) .........................................2

Ninth Circuit Rule 28.2.7 .................................................................................3

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INTRODUCTION
The California Legislature enacted Assembly Bill (AB) 587 to provide

transparency to California consumers regarding how large social media

companies moderate the content posted on their platforms. It is a disclosure

statute that requires companies to report facts about their existing, voluntary

policies and practices. See Cal. Bus. & Prof. Code §§ 22676-22678.

Specifically, AB 587 requires platforms to post their terms of service and to

submit to the Attorney General “terms of service reports” containing certain

high-level information about the platforms’ content-moderation policies and

practices. Id. §§ 22676-22677. Unlike laws recently enacted in other states,

AB 587 does not dictate how platforms must or must not moderate content,

nor does it give the Attorney General license to use his enforcement

authority to coerce companies in this regard. See id.

The district court correctly determined that Plaintiff-Appellant X Corp.

(formerly Twitter) is not entitled to a preliminary injunction. X Corp. is not

likely to succeed on its First Amendment claim because, as a regulation

requiring the disclosure of “purely factual and uncontroversial” information

in the commercial context, AB 587 is subject to and satisfies the deferential

standard of review set forth in Zauderer v. Office of Disciplinary Counsel,

471 U.S. 626, 651 (1985). Nor is X Corp. likely to succeed on its
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preemption claim. That claim, which is premised upon X Corp’s speculation

that the government may take enforcement action against it in the future, is

unripe and fails on the merits. Finally, X Corp. has failed to establish that it

will suffer irreparable harm absent a preliminary injunction or that the

equities or public interest favor an injunction.

JURISDICTIONAL STATEMENT
The district court had subject matter jurisdiction under 28 U.S.C.

§ 1331. On December 28, 2023, the district court entered an order denying

Plaintiff’s motion for a preliminary injunction. 1-ER-2. This Court has

jurisdiction under 28 U.S.C. § 1292(a)(1). Plaintiff timely filed its notice of

appeal on January 12, 2024. 6-ER-1094; see Fed. R. App. P. 4(a)(1)(B)(i).

STATEMENT OF ISSUES
1. Whether Plaintiff is likely to succeed on its claim that AB 587’s

terms of service report requirements violate the First Amendment right to

free speech.

2. Whether Plaintiff is likely to succeed on its claim that AB 587’s

terms of service report requirements are preempted by the Communications

Decency Act, 47 U.S.C. § 230(c).

3. Whether failure to enjoin enforcement of AB 587’s terms of

service report requirements during the pendency of this litigation would

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cause Plaintiff irreparable harm.

4. Whether enjoining enforcement of AB 587’s terms of service

report requirements during the pendency of this litigation is equitable and in

the public interest.

CIRCUIT RULE 28.2.7 STATEMENT

All applicable constitutional provisions and statutes are contained in the

addendum to Plaintiff’s Opening Brief.

STATEMENT OF THE CASE

I. FACTUAL AND LEGAL BACKGROUND

A. Social Media Content Moderation and the NetChoice

Cases
Social media platforms such as X Corp., Facebook, and YouTube have

terms of service, including content-moderation rules, to which individuals

must agree as a condition of using the platform. See, e.g., O’Handley v.

Padilla, 579 F. Supp. 3d 1163, 1172 (N.D. Cal 2022), aff’d sub. nom.

O’Handley v. Weber, 62 F.4th 1145 (9th Cir. 2023), pet. for cert. filed, No.

22-1199 (U.S. June 8, 2023). Through these rules, platforms reserve the

right to take action against content or users that violate the rules. Id. at

1186.

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In recent years, content moderation by social media companies has

drawn public concern, with numerous lawsuits filed by users whose accounts

were limited or suspended for posting content that violated the platforms’

rules. See, e.g., Informed Consent Action Network v. YouTube, Inc., 582

F. Supp. 3d (N.D. Cal. 2022); Yuksel v. Twitter, Inc., No. 22-cv-05415-TSH,

2022 WL 16748612 (N.D. Cal. Nov. 7, 2022).

Florida and Texas have enacted laws related to social media content

moderation that include at least two types of requirements for social media

platforms: 1) restrictions prohibiting social media platforms from banning,

demoting, or otherwise limiting particular kinds of content, and

(2) transparency provisions requiring specified factual disclosures about

platforms’ content-moderation policies and practices. NetChoice, LLC v.

Att’y Gen. (“NetChoice (Fla.)”), 34 F.4th 1196, 1205-1207 (11th Cir. 2022),

cert. granted in part sub nom. Moody v. NetChoice, LLC, 144 S. Ct. 478

(2023), and cert. denied sub nom. NetChoice, LLC v. Moody, 144 S. Ct. 69

(2023); NetChoice, LLC v. Paxton (“NetChoice (Tex.)”), 49 F.4th 439, 445-

446 (5th Cir. 2022), cert. granted in part, 144 S. Ct. 477 (2023).

The challenged Florida transparency provisions require platforms to,

among other things: (1) “publish the standards, including detailed

definitions, it uses or has used for determining how to censor, deplatform,

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and shadow ban”;1 (2) “inform its users about any changes to its rules, terms,

and agreements before implementing the changes”; and (3) provide

individualized notice and explanation to users before the platform restricts

their content. NetChoice (Fla.), 34 F.4th at 1206-07 (internal quotation

marks omitted).

The challenged Texas transparency provisions require platforms to:

(1) publish an “acceptable use policy” and disclose certain information about

the Platforms’ content management practices; (2) publish a twice-yearly

transparency report containing “high-level statistics about their content-

moderation activities”; and, (3) institute a complaint-and-appeal process

related to platforms’ removal of content. NetChoice (Tex.), 49 F.4th at 485.

In considering First Amendment challenges to the Texas and Florida

content-moderation restrictions at the preliminary injunction stage, the Fifth

and Eleventh Circuits reached divergent conclusions. Compare NetChoice

(Fla.), 34 F.4th at 1222-23 (invalidating Florida law), with NetChoice (Tex.),

1
The Florida statute defines the term “deplatform” as “the action or
practice by a social media platform to permanently delete or ban a user or to
temporarily delete or ban a user from the social media platform for more
than 14 days.” NetChoice (Fla.), 34 F.4th at 1206. “Shadow banning”
refers to any action to “limit or eliminate the exposure of a user or content or
material posted by a user to other users of [a] ... platform.” Id.

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49 F.4th at 482 (upholding Texas law). However, both courts held that

nearly all of the states’ transparency provisions were likely constitutional.

See NetChoice (Fla.), 34 F.4th at 1230-31; NetChoice (Tex.), 49 F.4th at

485-88.2 The Supreme Court granted certiorari in part, agreeing to consider

only the challenges to the content-moderation restrictions, and not the

challenges to the transparency provisions. See Moody v. NetChoice, LLC,

144 S. Ct. 478 (2023); NetChoice, LLC v. Paxton, 144 S. Ct. 477 (2023);

Brief for the United States as Amicus Curiae, Nos. 22-277, 22-393, 22-555,

2023 WL 5280330 (U.S. Aug. 14, 2023).

B. California Assembly Bill 587

The California Legislature enacted AB 587 in September 2022. Unlike

the laws challenged in the NetChoice cases, AB 587 does not regulate social

media platforms’ content-moderation policies or practices; rather, it is only a

transparency measure. 4-ER-405. The law requires social media

companies, as defined, to post their terms of service and to submit

semiannual reports to the Attorney General about their terms of service and

content-moderation policies and practices. Cal. Bus. & Prof. Code

2
The only transparency provision not upheld was Florida’s user and
notice-and-explanation provision. NetChoice (Fla.), 34 F.4th at 1230-31.
There is no comparable provision in AB 587.
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§§ 22676, 22677. The Legislature’s purpose was “to increase transparency

around what terms of service social media companies are setting out and

how it ensures those terms are abided by.” 4-ER-499; 4-ER-459.

In other words, AB 587 is simply a disclosure statute intended to

provide the public with information about social media platforms’

voluntarily-adopted content-moderation policies and practices. See Cal.

Bus. Prof. Code §§ 22676, 22677, 22678; see also 4-ER-458-59. The law

informs users about “what social media platforms do to flag and remove

certain kinds of content, which may affect what sites users prefer to use,”

and “what kind of content or conduct could lead to their being temporarily or

permanently banned from using the social media service.” 4-ER-405.

AB 587 achieves this transparency goal by creating specified disclosure

requirements for social media companies that generate one hundred million

dollars or more in gross revenue each year. 3 Cal. Bus. & Prof. Code

§§ 22675-22677, 22680. The disclosure requirements generally fall into two

categories: those in Business and Professions Code section 22676,

3
AB 587 defines “social media company” as a person or entity that
owns or operates one or more “social media platforms.” Cal. Bus. & Prof.
Code § 22675(d). A “social media platform” is a “public or semi-public
internet-based service that has users in California and meets” specific
criteria. Id. § 22675(e).
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sometimes known as the “terms of service requirements” and those in

section 22677, sometimes known as the “terms of service report

requirements.” In this appeal, X Corp. seeks to reverse the district court’s

ruling only as to the terms of service report requirements and the penalty

provisions as they apply to those requirements. AOB 9.

Under AB 587’s terms of service report requirements, social media

companies must submit to the Attorney General a semiannual “terms of

service report” containing specific factual information. Cal. Bus. & Prof.

Code § 22677(a)-(b).4 The reports must include the “current version of the

platform’s terms of service” and a “detailed description of any changes to

the terms of service since the previous report.” Id. § 22677(a)(1)-(2). The

report must include a “statement of whether the current version of the terms

of service defines” a list of specific categories and “if so, the definitions of

those categories.” Id. § 22677(a)(3). The categories include: “[h]ate speech

or racism,” “[e]xtremism or radicalization,” “[d]isinformation or

4
On January 1, 2024, the first terms of service reports were due for
social media companies subject to AB 587. Cal. Bus. & Prof. Code
§ 22677(b)(2). Accordingly, X Corp. filed its terms of service report on that
date. See Request for Judicial Notice (“RJN”) No. 1.

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misinformation,” “[h]arassment,” and “[f]oreign political interference.”5 Id.

§ 22677(a)(3)(A)-(E). The reports must include a “detailed description of

content moderation practices used by the social media company,” including,

among other things, “any existing policies intended to address the

categories” enumerated above. Id. § 22677 (a)(4). Finally, the reports must

include “information on content that was flagged by the social media

company as content belonging to any of the categories,” including the

number of items of content that were “flagged” or “actioned” by the social

media company, and how those items of content were “flagged” of

“actioned,” e.g., whether by company employees, artificial intelligence

software, or users. Id. § 22676(a)(5), (a)(5)(B)(iv)-(v). The Attorney

General must compile all terms of service reports and make them available

to the public in a “searchable repository on its official internet website.” Id.

§ 22676(c); see also RJN No. 1.

AB 587 creates a civil penalty for certain violations of the terms of

service report requirements, which are enforceable by certain law

enforcement officials in a court of law. Cal. Bus. & Prof. Code § 22678. In

5
AB 587 was subsequently amended to add to this list “[c]ontrolled
substance distribution.” AB 1027, 2023-2024 Reg. Sess. (Cal. 2023). AB
587 has not otherwise been amended.
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assessing the amount of any penalty, “the court shall consider whether the

social media company has made a reasonable, good faith attempt to comply

with the provisions of this chapter. Id. § 22678(c)(3). The law does not give

the Attorney General any special authority to assess or collect penalties

outside of a court action. See id. § 22678. Nor does the AB 587 confer on

the Attorney General any special authority to investigate social media

companies’ compliance with AB 587 beyond the general powers attendant to

his office. See id.6

AB 587 does not apply to social media companies with gross annual

revenues of less than $100 million nor to companies with platforms “for

which interactions between users are limited to direct messages, commercial

transactions, consumer reviews of products, sellers, services, events, or

6
X Corp. has referenced a November 2022 letter from the Attorney
General to five of the largest social media companies, including X Corp. 6-
ER-1067. This letter does not relate to or affect the constitutionality of AB
587. The Attorney General sent it shortly before the midterm elections of
2022, writing to express his concern about the spread of election
disinformation on social media and the role it could play in chilling the
democratic process. 6-ER-1067-68, 1074. The letter briefly mentions AB
587 only once, and in a footnote, in connection with stating (accurately) that
“[i]n 2024, social media platforms will also have additional transparency
obligations, as required by recent state legislation that requires disclosures
on content moderation practices.” 6-ER-1070 (emphases added).
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places, or any combination thereof.” Id. § 22681.

Nothing in AB 587 requires social media companies to disclose

individual users’ identities, information, or the substance of their specific

posts. See id. §§ 22675-81. Nor does AB 587 dictate the substance of social

media companies’ terms of service or related policies, or control the actions

that social media companies may take (or decline to take) against any item

of content or user. See id.

II. PROCEDURAL BACKGROUND

A. X Corp.’s Complaint and Motion for a Preliminary

Injunction
Plaintiff X Corp. owns the large social media platform X, formerly

known as Twitter. AOB 7. On September 8, 2023, X Corp. filed its

complaint against the Attorney General challenging the constitutionality of

AB 587 and seeking declaratory relief and injunctive relief barring the law’s

enforcement. Complaint (ECF No. 1) at 1-2, 34-35, X Corp. v. Bonta, No.

2:23-cv-01939-WBS-AC (E.D. Cal. Sept. 8, 2023) (“Complaint”). The

Complaint alleges three cause of action: (1) a violation of the free speech

clauses of the U.S. and California Constitutions, id. at 28-31; (2) a violation

of the dormant Commerce Clause, id. at 31; and (3) federal preemption

under the Communications Decency Act, 47 U.S.C. § 230(c), Complaint at

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33-34. X Corp. filed a motion for preliminary injunction based on its First

Amendment and preemption claims, seeking to enjoin the Attorney General

from enforcing any provision of AB 587 against it. 4-ER-595.7

B. The District Court’s Order Denying X Corp.’s

Motion for a Preliminary Injunction
The district court denied Plaintiffs’ motion in a December 28, 2023

Memorandum and Order (“Order”). 1-ER-2. The court began its analysis

with Plaintiffs’ First Amendment claim. The court held that Plaintiff was

unlikely to prevail because AB 587’s terms of service report requirements

(and its terms of service requirements) were subject to and satisfied the

Zauderer test for compelled speech in a commercial context. 1-ER-5.

With respect to the terms of service report requirements, the court

“[f]ollowed the lead of the Fifth and Eleventh Circuits” in determining that

the Zauderer test applies. 1-ER-5 (citing NetChoice (Fla.), 34 F.4th at 1230;

NetChoice (Tex.) 49 F.4th at 485).

The court then concluded that the terms of service report requirements

satisfy Zauderer. 1-ER-6. The court reasoned that the provisions require

7
Because X Corp.’s motion for a preliminary injunction did not seek
relief under the dormant Commerce Clause, see 4-ER-595, that claim is not
relevant to this appeal.
12
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speech that is “purely factual” and “uncontroversial” because they “merely

require a social media companies to identify their existing content-

moderation policies, if any, related to the specified categories” and the

“mere fact that the reports may be ‘tied in some way to a controversial issue’

does not make the reports themselves controversial.” 1-ER-5-6 (quoting

CTIA - The Wireless Ass’n v. City of Berkeley, 928 F.3d 832, 845 (9th Cir.

2019)). The court rejected X Corp.’s argument that the terms of service

report requirements are “unduly burdensome,” explaining that “AB 587 does

not require that a social media company adopt any of the specified

categories” of speech, and that in any event “Zauderer is concerned not

merely with logistical or economic burdens, but burdens on speech.” 1-ER-

6. It further held that the terms of service report requirements are

“reasonably related to a substantial government interest in requiring social

media companies to be transparent about their content-moderation policies

and practices so that consumers can make informed decisions about where

they consume and disseminate news and information.” 1-ER-6.

The district court also determined that X Corp. had failed to show a

likelihood of success on its claim that AB 587 is preempted by 47 U.S.C.

§ 230(c). The court observed that the purpose of section 230(c) “is to

provide protection for ‘Good Samaritan’ blocking and screening of offensive

13
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material” so that a website may “self-regulate offensive third party content

without fear of liability.” 1-ER-7 (internal quotations of section 230(c)

omitted) (quoting Doe v. Internet Brands, Inc., 824 F.3d 846, 851-52 (9th

Cir. 2016)). The court concluded that AB 587 is not preempted because,

under AB 587’s plain language, it “does not provide for any potential

liability stemming from a company’s content moderation activities per se,”

only for failing to make AB 587’s required disclosures. 1-ER-8.

STANDARD OF REVIEW
“A preliminary injunction is an extraordinary remedy never awarded as

of right.” Winter v. Nat. Res. Defense Council, Inc., 555 U.S. 7, 24 (2008).

A plaintiff seeking a preliminary injunction must show “that he is likely to

succeed on the merits, that he is likely to suffer irreparable harm in the

absence of preliminary relief, that the balance of equities tips in his favor,

and that an injunction is in the public interest.” Id. at 20. Alternatively, the

plaintiff may obtain a preliminary injunction by showing that there are

“serious questions going to the merits” and “the balance of hardships tips

sharply in the plaintiff’s favor.” All. for the Wild Rockies v. Cottrell, 632

F.3d 1127, 1135 (9th Cir. 2011). An order denying a preliminary injunction

is reviewed for abuse of discretion; the district court’s conclusions of law are

reviewed de novo. Id. at 1131.

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SUMMARY OF THE ARGUMENT

This Court should affirm the district court’s order denying X Corp.’s

motion for a preliminary injunction. The district court did not abuse its

discretion in concluding that X Corp. failed to establish that it was likely to

succeed on its First Amendment or preemption claim, that it is at risk of

irreparable harm, or that the equities and public interest tip in its favor.

AB 587 does not violate the First Amendment right to free speech.8

The district court correctly determined that AB 587 is subject to the

deferential Zauderer standard of review for compelled disclosures in the

commercial context. To qualify for Zauderer review, the speech at issue

must disclose “purely factual and uncontroversial information about the

terms under which ... services will be available.” CTIA, 928 F.3d at 845

(quoting Zauderer, 471 U.S. at 651).

AB 587 satisfies each of these requirements. The law concerns

commercial speech because it requires businesses (social media companies)

to make factual disclosures to consumers about their services (i.e. online

8
As explained above (see supra at 8), X Corp. seeks to reverse the
district court’s ruling only as to AB 587’s terms of service report
requirements in California Business and Professions Code section 22677 and
the related penalty provisions. AOB 9. However, for ease of reference, this
section and the Argument section will refer to the terms of service report
requirements as “AB 587.”
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platforms). This speech is not inextricably intertwined with noncommercial

speech because the law does not compel social media companies to make

any statements apart from those disclosures. The disclosures are purely

factual and uncontroversial because the information consists only of facts

about the platforms’ existing content-moderation policies and practices. The

disclosures are “about the terms under which ... services will be available,”

CTIA, 928 F.3d at 845, because they provide information about platform’s

content-moderation policies and practices.

AB 587, moreover, satisfies Zauderer scrutiny. The disclosures it

requires are “reasonably related to a substantial governmental interest.”

CTIA, 928 F.3d 832. As the district court recognized, AB 587 advances

California’s “substantial interest in requiring social media companies to be

transparent about their content-moderation policies and practices so that

consumers can make informed decisions about where they consume and

disseminate news and information.” 1-ER-6. AB 587 also is not so

“unjustified or unduly burdensome” that it “chill[s] protected commercial

speech.” Zauderer, 471 U.S. at 651. Indeed, the law requires only factual

disclosures and does not dictate whether or how platforms must moderate

content.

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Alternatively, AB 587 also satisfies Central Hudson intermediate

scrutiny. See Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of

N.Y., 447 U.S. 557, 564 (1980). AB 587 “directly advances” the state’s

“substantial interest” in transparency for social media users. Id. And the

law is “no more extensive than necessary,” see id., because its minimally-

burdensome disclosure requirements are a proportional to this interest.

AB 587 is not subject to strict scrutiny, as X Corp. argues. Regardless

of whether AB 587 is “content-based,” such regulations are not subject to

strict scrutiny where, as here, they qualify for Zauderer or Central Hudson

review. Nationwide Biweekly Admin., Inc. v. Owen, 873 F.3d 716, 732 (9th

Cir. 2017). AB 587 is, moreover, viewpoint neutral, because it does not

mandate that X Corp. disclose any particular message. AB 587 also does not

interfere with platforms’ “editorial judgments” because it does not dictate—

or give the government authority to investigate or prosecute—any content-

moderation policies or practices. The statute merely requires platforms to

accurately disclose the policies and practices they have voluntarily chosen to

adopt. See Cal. Bus. Prof. Code § 22677(a).

Nor does section 230(c) of the Communications Decency Act preempt

AB 587. Section 230(c) provides that no social media platform “shall be

held liable on account of any action voluntarily taken in good faith to restrict
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access to or availability of” content that is deemed objectionable or obscene.

47 U.S.C. § 230(c)(2)(A). X Corp. suggests that AB 587 makes platforms

“liable” for their content moderation actions because the Attorney General’s

authority to investigate platforms’ material omissions or misrepresentations

in the terms of service reports pressures platforms to moderate content

according to the State’s preferences. That claim is both unripe and

meritless. It is unripe because the Attorney General has not investigated or

charged X Corp. with violating AB 587, nor has there been any “genuine

threat of imminent prosecution.” Wolfson v. Brammer, 616 F.3d 1045, 1058

(9th Cir. 2010) (internal quotation marks omitted). And on the merits,

X Corp’s preemption claim fails because AB 587 creates liability only for

platforms’ failure to comply with their disclosure obligations, not for any act

of moderating content.

Finally, X Corp. has not shown that it would suffer irreparable harm

absent a preliminary injunction, or that the balance of the equities and public

interest favor a preliminary injunction. See Winter, 555 U.S. at 20.

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ARGUMENT

I. THE DISTRICT COURT CORRECTLY RULED THAT X CORP.

IS UNLIKELY TO SUCCEED ON ITS FIRST AMENDMENT
CLAIM

A. The Zauderer Test for Commercial Disclosures

Applies to AB 587
In Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985), the

Supreme Court established a standard for analyzing government-mandated

disclosures in the context of commercial speech. To qualify for Zauderer

review, the speech at issue must disclose “purely factual and uncontroversial

information about the terms under which ... services will be available.”

CTIA - The Wireless Ass’n v. City of Berkeley, 928 F.3d 832, 845 (quoting

Zauderer, 471 U.S. at 651); accord Nat’l Inst. of Fam. & Life Advocs. v.

Becerra, 585 U.S. 755, 768 (2018) (“NIFLA”).

As explained below, the district court correctly determined that AB 587

meets each of these requirements for Zauderer scrutiny.

1. AB 587 regulates commercial speech

a. Under Zauderer, consumer product and

service disclosures are generally treated as
“commercial speech”
“Commercial speech is ‘usually defined as speech that does no more

than propose a commercial transaction.’” Ariix, LLC v. NutriSearch Corp.,

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985 F.3d 1107, 1115 (9th Cir. 2021) (quoting United States v. United Foods,

Inc., 533 U.S. 405, 409 (2001)). However, this defines only the “core

notion” of commercial speech – other communications may also constitute

commercial speech. Jordan v. Jewel Food Stores, Inc., 743 F.3d 509, 516

(7th Cir. 2014) (quoting Bolger v. Youngs Drug Prod. Corp., 463 U.S. 60,

66 (1983)). Courts therefore view this definition as “just a starting point” of

the commercial speech analysis. Id.; accord Ariix, 985 F.3d at 1115. The

full analysis “is fact-driven, due to the inherent difficulty of drawing bright

lines that will clearly cabin commercial speech in a distinct category.” First

Resort, Inc. v. Herrera, 860 F.3d 1263, 1272 (9th Cir. 2017) (internal

quotation marks omitted).

“Because of the difficulty of drawing clear lines between commercial

and non-commercial speech, the Supreme Court in Bolger outlined three

factors to consider.” Ariix, 985 F.3d at 1115; see Bolger, 463 U.S. at 66-67.

These are whether (1) the speech is an “advertisement[],” (2) the speech

refers “to a specific product,” and (3) the speaker “has an economic

motivation.” Bolger, 463 U.S. at 66-67). “These so-called Bolger factors

are important guideposts, but they are not dispositive.” Ariix, 985 F.3d at

1116.

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Indeed, if a law compels a business to make disclosures to prospective

consumers or the general public regarding a product or service the business

sells, courts generally treat this as sufficient to meet Zauderer’s commercial

speech requirement. In these cases, courts often do not expressly apply the

Bolger factors or the “do no more than propose a commercial transaction”

test; rather, they proceed directly to considering whether the speech at issue

meets Zauderer’s other requirements. In CTIA, for example, a city

ordinance required cell phone retailers to provide a notice to customers

about cell phone radiation. 928 F.3d at 843. This Court applied Zauderer

scrutiny because the parties agreed that the compelled speech was

commercial and the Court did not disagree. Id. at 841-42; see also Nat’l

Elec. Mfrs. Ass’n v. Sorrell, 272 F.3d 104, 113 (2d Cir. 2001) (applying

Zauderer scrutiny where the plaintiff did not dispute that labeling

requirement for mercury-containing products involved commercial speech

and court did not disagree). In many other cases, courts have analyzed

whether a government-mandated disclosure by businesses meets Zauderer’s

other requirements, apparently assuming that the commercial-speech

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component of the test was satisfied.9

In contrast, X Corp. has cited no case from the Supreme Court, this

Court, or any other federal court of appeals—and the Attorney General is

aware of none—invalidating a government-mandated disclosure because the

law did not “propose a commercial transaction” or satisfy the Bolger factors.

X Corp. cites only one out-of-circuit district court case, Volokh v. James,

656 F. Supp. 3d 431 (S.D.N.Y. 2023). AOB 27. But the law at issue in that

case was not solely a disclosure mandate (as AB 587 is); rather, the

challenged law required social media platforms to both create and to disclose

a policy regarding “hateful” social media content. Volokh, 656 F. Supp. 3d

at 437-38. Although the court concluded that the compelled speech was not

commercial, it did not engage in a “fact-driven” analysis (First Resort, Inc.,

860 F.3d at 1272) or even apply the Bolger factors. Volokh, 656 F. Supp. 3d

at 443. As the other cases above indicate, the mode of analysis and

conclusion in Volokh is out of step with Ninth Circuit and other authorities,

and the case is both distinguishable and not binding here.

9
See, e.g., NIFLA, 585 U.S. at 768-69; Nat’l Wheat Growers Assn. v.
Bonta, 85 F.4th 1263, 1275-76 (9th Cir. 2023); NetChoice (Fla.), 34 F.4th at
1230; NetChoice (Tex.), 49 F.4th at 485; Am. Hosp. Ass’n v. Azar, 983 F.3d
528, 540-41 (D.C. Cir. 2020);
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b. AB 587 requires disclosures to consumers

about the social media platform’s
commercial services
AB 587 requires the same type of product or service disclosure to

consumers that courts subject to Zauderer scrutiny as commercial speech.

The statute obligates platforms to disclose their terms of service, information

on the platform’s content moderation practices, and, in some cases, high-

level statistics about categories of content that the company actually flagged

as violating their terms of service. Cal. Bus. & Prof. Code § 22677(a).

AB 587 provides that the Attorney General must “make all terms of service

reports submitted pursuant to this section available to the public in a

searchable repository on its official internet website.” Id. § 22676(c). In

other words, the terms of service reports require businesses (large social

media platforms) to disclose facts about how their own commercial services

function.10 And, the reports must be made available, in full, to the public

that uses these services. Cal. Bus. & Prof. Code § 22677(c).

10
X Corp.’s terms of service expressly state that they are part of a
“legally binding contract” between X Corp. and its users. 5-ER-758. And,
in cases between users and online platforms, the terms of service have been
treated as enforceable contracts. See, e.g., Swift v. Zynga Game Network,
Inc., 805 F. Supp. 2d 904, 913 (N.D. Cal. 2011); King v. Facebook, Inc., 572
F.Supp.3d 776, 790 (2021); Bass v. Facebook, Inc., 394 F. Supp. 3d 1024,
1038 (N.D. Cal. 2019).
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The disclosure provisions of the Florida and Texas transparency laws

challenged in the NetChoice cases do not meaningfully differ from AB 587

for the purposes of the commercial speech analysis. See AOB 26. The

Florida law requires platforms to, among other things, “publish the

standards, including detailed definitions, it uses or has used for determining

how to censor, deplatform, and shadow ban.” NetChoice (Fla.), 34 F.4th at

1206-07; see Fla. Stat. Ann. § 501.2041. The Texas law requires platforms

to make bi-annual “transparency report[s],” which must include, among

other things, high-level statistics reflecting the platform’s actions to restrict

content, categorized by the platform’s rule that was violated. NetChoice

(Tex.), 49 F.4th at 485; Tex. Bus. & Com. Code Ann. § 120.053(a)(2),

(b)(1). X Corp. argues that these laws differ from AB 587 because they do

not require platforms to disclose whether they moderate content according to

particular categories identified in the law. AOB 26. However, this

difference does not make AB 587’s required disclosures any less

commercial. The required disclosures under all three state laws are

commercial because they are made by a company to describe its service for

the purpose of informing the service’s consumers.

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c. The commercial speech required by AB

587 is not “inextricably intertwined” with
noncommercial speech
X Corp. argues that AB 587 is subject to strict scrutiny rather than

Zauderer scrutiny because, even if the compelled disclosures are

commercial speech, they are “inextricably intertwined” with noncommercial

speech. AOB 38. Specifically, X Corp. asserts that disclosures about

whether and how it moderates the categories of speech enumerated in the

statute constitute noncommercial speech because they reveal X Corp.’s

position on controversial political topics. Id.

However, “advertising which ‘links a product to a current public

debate’ is not thereby entitled to the constitutional protection afforded

noncommercial speech.” Bolger, 463 U.S. at 68 (quoting Cent. Hudson, 447

U.S. at 563 n.5). AB 587 compels only commercial disclosures about

X Corp.’s commercial service, i.e., how it treats the content that users post to

the platform The law does not compel any political or otherwise

noncommercial message.

X Corp. appears to take issue with three provisions of AB 587:

California Business and Professions Code section 22677, subdivisions

(a)(3), (a)(4)(A), and (a)(5). AOB 38-39. None of these requires X Corp. to

make any political or otherwise noncommercial statement.

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Subdivision (a)(3) requires X Corp. to disclose the definitions of

content categories that X Corp. uses in its terms of service. Cal. Bus. &

Prof. Code § 22677(a)(3) (requiring a “statement of whether the current

version of the terms of service defines each of the following categories of

content and, if so, the definitions of those categories” (emphasis added)). It

therefore does not require X Corp. to provide any additional information that

cannot be found in its terms of service. Compare 5-ER-758 (X Corp. terms

of service) with RJN No. 1 (X Corp. January 2024 terms of service report).

Not only has X Corp. elected not to appeal the district court’s determination

that AB 587 may constitutionally require X Corp. to post its terms of service

on its own site under California Business and Professions Code section

22676, AOB 9, but X Corp. also concedes that it posts its terms of service

voluntarily, AOB 12-13; 7-ER-1114.

Subdivision (a)(4)(A) requires a description of X Corp.’s “policies

intended to address the categories of content” enumerated in the statute. In

other words, it merely requires X Corp. to disclose its policy for how (if at

all), as a matter of company operations, the platform addresses the specified

content. The statute does not obligate the company to disclose the reason for

that policy or the company’s “mission.” AOB 39.

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Finally, subdivision (a)(5) requires high-level statistics “on content that

was flagged by the social media company as content belonging to any of the

[enumerated] categories.” Since these statistics are not linked to any

particular posts or messages by users, these numerical disclosures do not

reveal X Corp.’s views on political topics. See RJN No. 1 at 5-11.

2. AB 587’s required disclosures are “purely

factual”
AB 587 also meets Zauderer’s requirement that the government-

mandated disclosures at issue are “purely factual.” 1-ER-5; see also

NetChoice (Tex.), 49 F.4th at 485(compelled disclosures were purely

factual); NetChoice (Fla.), 34 F.4th at 1227 (same).

X Corp. asserts that the required disclosures related to the statute’s

enumerated categories of content (“disinformation,” “hate speech,” etc.) are

not purely factual. See AOB 28-34. The district court aptly summarized

why that is wrong: “The reporting requirement merely requires social media

companies to identify their existing content-moderation policies, if any,

related to the specified categories. The statistics required if a company does

choose to utilize the listed categories are factual, as they constitute objective

data concerning the company’s actions.” 1-ER-5 (internal citation omitted).

In other words, AB 587 requires only the disclosure of facts about the

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company’s actual policies and actual conduct, the accuracy of which is not

subject to reasonable dispute.

X Corp. appears to argue that AB 587’s required disclosures are not

purely factual because it may sometimes be debatable whether particular

user posts fall into the statute’s enumerated categories. AOB 29. To be

sure, there likely will be instances in which platforms must exercise

discretion and judgment to determine whether individual posts violate their

policies. But the fact remains that the existence of those policies, whatever

they may be, is purely factual – and that is all AB 587 is concerned with.

AB 587 does not seek to force X Corp. or any other platform to assess or

disclose whether specific posts fall into certain categories or violate any

policies.

X Corp. also argues that AB 587’s requirement to disclose “[a]ny

existing policy intended to address” the enumerated categories does not

compel purely factual information, because of the word “intended.” AOB

30 (quoting Cal. Bus & Prof. Code § 22677(a)(4)). But compliance with this

requirement is not complex: X Corp. need merely disclose official company

policies that actually address the categories. That is exactly what X Corp.

did in its January 2024 terms of service report. RJN No. 1 at 2-3. AB 587

does not force X Corp. to speculate about whether certain policies were
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subjectively intended to address the enumerated categories.

Finally, X Corp. argues that the high-level statistics AB 587 requires it

to disclose are not purely factual “because placing a user’s post in a

particular category is itself an act of judgment.” AOB 30. But AB 587 does

not require X Corp. to exercise that judgment in any particular way, disclose

how it categorized any particular posts, or “explain[] why posts were

flagged.” AOB 31. It merely requires X Corp. to report the numerical

values of how many times the company actually did, as a matter of fact,

place posts into a particular category. See Cal. Bus. & Prof. Code

§ 22677(a)(5)(A) (requiring “[i]nformation on content that was flagged by

the social media company as content belonging to any of” the categories

(emphases added)).

X. Corp. cites (AOB 30) Book People, Inc. v. Wong, 91 F.4th 318 (5th

Cir. 2024), but that case is readily distinguishable because the compelled

information there “require[d] vendors to undertake contextual analyses,

weighing and balancing many factors to determine a [sexual content] rating

for each book.” Id. at 340. If, instead, the statute had required the vendors

to disclose the number of books that the vendor had voluntarily and actually

reviewed and rated as “sexually explicit,” then, like here, the disclosure

would have been purely factual.

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3. AB 587’s required disclosures are

“uncontroversial”
AB 587’s category-related requirements are also “uncontroversial” as

Zauderer uses that term. 471 U.S. 626; see 1-ER-5-6; NetChoice (Tex.), 49

F.4th at 485; NetChoice (Fla.), 34 F.4th at 1227. In CTIA, this Court

defined “uncontroversial” to mean that the compelled speech does not force

the speaker to “convey a message fundamentally at odds with its mission.”

CTIA, 928 F.3d at 845. In National Wheat, the Court explained that, in

addition to that “subjective” definition, “an objective evaluation of

‘controversy’” should also be considered. 85 F.4th at 1277. Objective

controversy exists whether there is robust “scientific debate” or other

empirical disagreement about the factual accuracy of the speech. Id. at

1277-78; id. at 1279 n.12 (“the display of Warning Option 4 is controversial

because Plaintiffs do not agree with its message and Plaintiffs’ disagreement

is currently supported by a majority of the authorities in this as-yet-

unresolved scientific debate”). A disclosure is “uncontroversial” even if it

“can be tied in some way to a controversial issue,” and even if the disclosure

may be used by others to support arguments “in a heated political

controversy.” CTIA, 928 F.3d at 845.

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AB 587’s disclosure requirements are “uncontroversial” under this

framework. First, they are not “subjectively” controversial because they do

not force X Corp. to convey any message at all apart from the fact of its

policies existing, much less “a message fundamentally at odds with its

mission.” Id. And even if X Corp.’s factual disclosures could plausibly be

understood to convey some sort of message (which they do not), those

disclosures would be consistent with X Corp.’s mission because they reflect

X Corp.’s own choices about what its policies are and how its commercial

service should function.

X Corp. argues that AB 587 forces it to convey a message

fundamentally at odds with its mission because the law purportedly

“frame[s] the debate about content moderation.” AOB 33. It is unclear

exactly what that means, but even if AB 587 were viewed as influencing the

public conversation about content moderation, that has no bearing on

whether the specific information the law requires social media platforms to

disclose is itself “controversial.” X Corp. is not required to convey any

message apart from the factual statements in its disclosure, much less any

message that it fundamentally disagrees with. It must simply tell the truth

about its own policies and has substantial leeway to describe and explain

those policies as it chooses. See Cal. Bus. Code § 22677(a). Indeed,

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X Corp. has identified no statement in its January 2024 terms of service

report that is supposedly fundamentally at odds with its mission. See AOB

33.

Second, AB 587’s disclosure requirements are not “objectively”

controversial because the terms of X Corp.’s content-moderation policies are

what they are; they are not the subject of unresolved empirical debate. See

Nat’l Wheat, 85 F.4th at 1277-78. While there may be public debate, and

even public pressure, about what subjects X Corp. should moderate (see

AOB 31-32), that does not render the law “controversial” for the purposes of

Zauderer scrutiny. It is insufficient for the compelled information to merely

relate to controversial subject matter. CTIA, 928 F.3d at 845. This is logical

from a practical perspective; the government often compels commercial

disclosures to create transparency for consumers because there is

controversy about what a product should contain or how a service should be

provided. But that does not make the commercial disclosures themselves

objectively controversial. See, e.g., CTIA, 928 F.3d at 848 (notice to

customers about cell phone radiation is “uncontroversial”); Nat’l Elec. Mfrs.

Ass’n, 272 F.3d at 114-115 (applying Zauderer to labeling requirement for

certain mercury-containing products)); Am. Meat Inst. v. U.S. Dep’t of

Agric., 760 F.3d 18, 21, 27 (D.C. Cir. 2014) (en banc) (country-of-origin
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label on meat is “uncontroversial”). Companies cannot avoid Zauderer

scrutiny merely because they provide a service that may cause public

concern.

4. AB 587 requires the disclosure of information

about the terms under which social media
platforms’ services are made available to the
public
Finally, AB 587 satisfies Zauderer’s requirement that the disclosures

must be “about the terms under which ... services will be available.” CTIA,

928 F.3d at 845 (quoting Zauderer, 471 U.S. at 651). In other words, the

disclosures must “relate to the product or service that is provided by an

entity subject to the requirement.” Id.; see id. at 848 (rejecting argument

that warnings about cell phone radiation “ha[ve] nothing to do with the

terms upon which cell phones are offered”).

Here, the disclosures under AB 587 relate to social media companies’

own product or services, because they provide information about how

companies’ own platforms function. See Cal. Bus. & Prof. Code

§ 22677(a)(1)-(5).

X Corp. briefly argues that Zauderer scrutiny does not apply to AB

587’s statistical requirements related to flagged content (see Cal. Bus. &

Prof Code § 22677(a)(5)) because they are “backward-looking statements

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that do not provide information about the terms under which the X platform

will be made available.” AOB 34. However, even though the conduct of

flagging content occurred in the recent past, the statistical information is

probative of how X Corp. presently enforces its terms of services and

moderates content. For example, if only a few months prior, X Corp.

flagged very few posts belonging to a certain prohibited category, that

strongly suggests that if a user posts that type of content today, it would

probably not be restricted. If the statistics are consistent across two or more

terms of service reports, that makes the evidence even stronger. And to the

extent that changes in a platform’s policies or practices may call into

question the relevance going forward of a particular statistical disclosure, the

platform is free to include that information in its disclosure if it wishes to do

so.

B. AB 587 Satisfies Zauderer Scrutiny

The district court also correctly concluded that AB 587 satisfies

Zauderer scrutiny. 1-ER-6-7. To satisfy Zauderer scrutiny, the compelled

information must be “reasonably related to a substantial governmental

interest.” CTIA, 928 F.3d 832. The regulation must also not be so

“unjustified or unduly burdensome” that it “chill[s] protected commercial

speech.” Zauderer, 471 U.S. at 651; NIFLA, 585 U.S. at 776.

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AB 587 satisfies each of these requirements.

1. AB 587’s requirements are reasonably related

to a substantial state interest
AB 587 satisfies Zauderer’s deferential standard of review because the

law is “reasonably related to a substantial governmental interest.” CTIA,

928 F.3d at 845. Courts recognize that states have a substantial interest in

facilitating transparency for consumer products and services. See, e.g.,

NetChoice (Fla.), 34 F.4th at 1230; NetChoice (Tex.), 49 F.4th at 485; see

also, e.g., Am. Hosp. Ass’n, 983 F.3d at 540-41; Am. Meat Inst., 760 F.3d at

26; Nat’l Elec. Mfrs. Assn., 272 F.3d at 115).

Indeed, the consumer transparency interests served by AB 587 are the

same as those the Eleventh and Fifth Circuits identified in upholding Florida

and Texas’s disclosure requirements in the NetChoice cases. The Eleventh

Circuit recognized Florida’s interest in requiring platforms to publish their

content-moderation standards because the requirement ensures that

“consumers who engage in commercial transactions with platforms by

providing them with a user and data for advertising in exchange for access to

a forum—are fully informed about the terms of that transaction and aren’t

misled about platforms’ content-moderation.” NetChoice (Fla.), 34 F.4th at

1230. Similarly the Fifth Circuit reasoned that Texas’ transparency

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provisions “advance the state’s interest in enabling users to make an

informed choice regarding whether to use the Platforms.” NetChoice (Tex.),

49 F.4th at 485.

Similarly here, the district court correctly concluded that California

“has a substantial interest in requiring social media companies to be

transparent about their content-moderation policies and practices so that

consumers can make informed decisions about where they consume and

disseminate news and information.” 1-ER-6. The goal of AB 537 was to

advance this interest. 4-ER-459 (“This bill seeks to increase transparency

around what terms of service social media companies are setting out and

how it ensures those terms are abided by”); 4-ER-405 (“[i]n essence, AB

587 is a transparency measure”). And AB 587 does advance that interest, by

requiring companies to disclose and explain their terms of service and to

report high-level information about their content-moderation policies and

practices. Cal. Bus. Prof. Code § 22677(a)(1)-(5). This helps inform

consumers about what types of content platforms are restricting, to what

extent, and particularly with respect to certain types of content such as hate

speech and disinformation that most consumers would prefer to avoid.

Rather than merely serve “consumer curiosity” (see AOB at 35), AB 587

provides important information to help consumers decide which platforms to

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use and which to avoid.

X Corp. argues that not all information required by AB 587 will likely

to be particularly useful to consumers. AOB 36-37. But the applicable

standard is whether AB 587’s requirements are “reasonably related” to the

State’s interest. CTIA, 928 F.3d at 845. This is a low bar, since Zauderer is

a form of “rational basis review.” Nationwide Biweekly Admin., Inc. v.

Owen, 873 F.3d 716, 732 (9th Cir. 2017). Deference to the California

legislature’s predictive judgment is required here, particular since X Corp.’s

preliminary injunction motion was a “pre-enforcement motion.” See Video

Software Dealers Ass’n v. Schwarzenegger, 556 F.3d 950, 962 (9th Cir.

2009), aff'd sub nom. Brown v. Ent. Merchants Ass'n, 564 U.S. 786 (2011);

Turner Broad. Sys., Inc. v. F.C.C., 520 U.S. 180, 195 (1997). And here, the

Legislature reasonably determined that AB 587 would aid consumers in

ascertaining how social media platforms are moderating user content. See

e.g. 4-ER-405-06; 4-ER-430-33; 4-ER-459-60.

2. AB 587’s requirements are not unjustified or

unduly burdensome
A disclosure requirement could violate the First Amendment if it was

so “unjustified or unduly burdensome” that it “chill[s] protected commercial

speech.” Zauderer, 471 U.S. at 651; see CTIA, 928 F.3d at 848-49. AB 587

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is not such a requirement.

X Corp. argues that AB 587 purportedly “pressures X Corp. to

moderate content in a particular way and thereby interferes with its

constitutionally protected editorial judgment.” AOB 54. It does no such

thing; as discussed in detail below (see infra at 49-50), the statute does not

coerce X Corp. in any way, and to the extent the company may voluntarily

choose to adopt certain content-moderation policies as a result of the

transparency AB 587 provides, that is not the kind of concern that this prong

of the Zauderer framework seeks to address. See CTIA, 928 F.3d at 848-49.

X Corp. also briefly asserts that AB 587 is unduly burdensome because

it purportedly chills the speech of X Corp. users. However, it does not

explain at all why user speech would be chilled and only cites Volokh for the

proposition that imposing a hate speech policy on a platform (which AB 587

does not do) would chill user speech. AOB 54 (citing Volokh, 656 F. Supp.

3d at 445).

C. Alternatively, AB 587’s Challenged Provisions Are

Permissible Under Central Hudson
“The Supreme Court recognizes two levels of scrutiny governing

compelled commercial speech,” namely Zauderer scrutiny and intermediate

scrutiny under Central Hudson Gas & Elec. Corp. v. Public Service

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Commission of New York, 447 U.S. 557, 564 (1980). Nat’l Wheat, 85 F.4th

at 1275. If a court determines that a law compelling commercial speech

does not qualify for Zauderer scrutiny, it should then apply Central Hudson

scrutiny to determine the law’s constitutionality. See id. at 1282. Here, even

if AB 587 did not qualify for Zauderer scrutiny, it would still be subject

only to Central Hudson scrutiny, which it satisfies.

Under Central Hudson, government regulation of commercial speech

will be upheld so long as: (i) the government asserts a “substantial” interest,

(ii) the regulation “directly advances” the government’s interest, and (ii) the

regulation is “not more extensive than necessary to serve that interest.”

Cent. Hudson, 447 U.S. at 566.

When applying intermediate scrutiny, courts give “substantial

deference to the predictive judgments of [the legislature].” Turner Broad.

Sys., Inc. v. FCC, 520 U.S. 180, 195 (1997) (internal quotation marks and

citation omitted); see also United States v. Edge Broad. Co., 509 U.S. 418,

434 (1993) (“Within the bounds of the general protection provided by the

Constitution to commercial speech, we allow room for legislative

judgments”). The legislature may rely on evidence “reasonably believed to

be relevant to the problem” (id. at 51) and such evidence need not be

empirical (see, e.g., City of Los Angeles v. Alameda Books, Inc., 535 U.S.
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425, 439 (2002) (plurality opinion) (city did not need empirical data to

support its conclusion that adult-bookstore ordinance would lower crime)).

1. AB 587 serves a substantial government interest

in social media platform transparency
As discussed above in the context of Zauderer scrutiny, AB 587 serves

California’s substantial interest in “requiring social media companies to be

transparent about their content-moderation policies and practices so that

consumers can make informed decisions about where they consume and

disseminate news and information.” 1-ER-6.

The need for this transparency is real and not hypothetical. See AOB

at 51. An article from the MIT Technology Review, cited in the legislative

history, explains “social media has become the terrain for a low-grade war

on our cognitive security, with misinformation campaigns and conspiracy

theories proliferating.” Joan Donovan, Why social media can’t keep

moderating content in the shadows, MIT Technology Review, Nov. 6,

202011; 4-ER-458. However, social media platforms “rarely provide

detailed insight into their content moderation practices.” Id. at 12.

X Corp. asserts that the public has no interest at all in learning more

11
https://www.technologyreview.com/2020/11/06/1011769/social-
media-moderation-transparency-censorship/ (last viewed March 13, 2024).
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about how social media platforms moderate user content because X Corp. is

already sufficiently transparent by posting its terms of service. AOB 51.

However, a statute does not violate the First Amendment merely because

one particular company previously complied with parts of the law

voluntarily. There is still a substantial interest in requiring all subject

companies to continue to make the required disclosures. Moreover, there is

also a strong public interest in transparency regarding how platforms’

publicly available content-moderation policies are actually enforced, and

that interest is documented in the legislative history. See, e.g., 4-ER-429-

431, 4-ER-458-460.

2. AB 587 directly advances the interest in social

media platform transparency
The second Central Hudson prong is also satisfied. For this

requirement, a state must show “that the harms it recites are real and that its

restriction will in fact alleviate them to a material degree.” Edenfield v.

Fane, 507 U.S. 761, 762 (1993). Nevertheless, “empirical data [need not]

come . . . accompanied by a surfeit of background information,” and such

restrictions may be “based solely on history, consensus, and simple common

sense.” Fla. Bar v. Went For It, Inc., 515 U.S. 618, 628 (1995) (internal

quotation marks omitted).

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As explained above in the context of Zauderer scrutiny, AB 587

directly advances the state’s interest in ensuring transparency in social media

companies’ content-moderation policies and practices. X Corp. does not

appear to dispute that this prong of Central Hudson is satisfied.

3. AB 587 is not “more extensive that necessary”

to serve the interest in social media platform
transparency
A restriction on commercial speech must also not be “more extensive

than necessary to serve the interests that support it.” Greater New Orleans

Broad. Ass’n, Inc. v. United States, 527 U.S. 173, 188 (1999). “The test is

sometimes phrased as requiring a reasonable fit between government's

legitimate interests and the means it uses to serve those interests.” Valle Del

Sol Inc. v. Whiting, 709 F.3d 808, 825 (9th Cir. 2013) (internal quotation

omitted). But the law need “not necessarily [be] the single best disposition

but one whose scope is in proportion to the interest served.” Bd. of Trustees

of State Univ. of N.Y. v. Fox, 492 U.S. 469, 480 (1989). So long as a statute

falls within those bounds, courts “leave it to governmental decisionmakers to

judge what manner of regulation may best be employed.” Id.

The disclosure requirements in AB 587 are a “reasonable fit” with the

state’s interest in ensuring transparency in social media companies’ content-

moderation policies and practices. Their scope is modest and their burden
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on the large, well-resourced social media companies to which they apply is

minimal because, rather than prescribe any terms of service or content

moderation practices, the law merely requires companies to disclose their

terms of service and generally report on what they are already doing to

moderate content.

X Corp. briefly proposes three less-restrictive alternatives. AOB 53.

Under Central Hudson, the State is not required to show that AB 587 is the

least restrictive means available to advance the state’s interest. Regardless,

none of X Corp.’s suggested alternatives would be sufficient to advance the

State’s transparency interests, and therefore none is a “reasonable fit.” Valle

Del Sol, 709 F.3d at 825. First, a review by the State of social media

companies’ content-moderation policies would provide no insight into how

companies actually enforce those policies, or any policies that are not

publicly available. The report would also fail to account for policy changes

over time. Second, applying AB 587 only to companies that do not already

disclose their policies would also fail to provide transparency into actual

content moderation practices. Third, omitting AB 587’s requirements

related to the enumerated categories would eliminate consumers’ ability to

make comparisons between platforms with respect to the type of content that

is most commonly restricted (and which most consumers prefer to avoid).

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D. AB 587 Is Not Subject to Strict Scrutiny

X Corp. offers several theories to support its argument that strict scrutiny

applies to AB 587. AOB 40-50. None of these theories has merit.

1. Strict scrutiny does not apply to “content-

based” laws in the context of commercial speech
or disclosures subject to Zauderer review
AB 587 requires large social media platforms to disclose specified types

of factual information. Even if this were to render the requirements “content-

based” to some degree, content-based restrictions are “not necessarily subject

to strict scrutiny.” United States v. Swisher, 811 F.3d 299, 313 (9th Cir. 2016).

It is true that many content-based speech regulations are subject to

strict scrutiny under the First Amendment. However, as the Supreme Court

explained in NIFLA, Zauderer set forth an exception to this rule for content-

based regulations in the context of required commercial disclosures. NIFLA,

138 S. Ct. at 2365-66 (citing Zauderer, 471 U.S. at 651). Thus, content-

based regulations that qualify for Zauderer review are not subject to strict

scrutiny. See id. This Court, too, has concluded that strict scrutiny does not

apply to all content-based compelled disclosures, and that an exception

applies when Zauderer or Central Hudson scrutiny is appropriate. See

Nationwide Biweekly Admin., Inc. v. Owen, 873 F.3d 716, 732 (9th Cir.

2017). Other courts have reached the same conclusion. See, e.g., Greater
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Baltimore Ctr. for Pregnancy Concerns, Inc. v. Mayor & City Council of

Baltimore, 721 F.3d 264, 283 (4th Cir. 2013); S.E.C. v. AT&T, Inc., 626 F.

Supp. 3d 703, 743 (S.D.N.Y. 2022).

X Corp. offers no authorities supporting the argument that commercial

disclosure requirements are subject to strict scrutiny merely because they

may be “content-based” to some extent. See AOB 40-41. The cases upon

which it relies—Reed v. Town of Gilbert, 576 U.S. 155, 159 (2015), and

Animal Legal Defense Fund v. Wasden, 878 F.3d 1184, 1203-04 (9th Cir.

2018)—did not involve commercial speech at all, much less commercial

disclosures that qualified for Zauderer review.

2. AB 587’s disclosure requirements are viewpoint

neutral
AB 587 is also not subject to strict scrutiny as viewpoint discriminatory

(see AOB 40-41), because the law is viewpoint neutral. “A regulation

engages in viewpoint discrimination when it regulates speech ‘based on the

specific motivating ideology or perspective of the speaker.’” First Resort,

860 F.3d at 1277 (quoting Reed, 576 U.S. at 168).

AB 587 is facially viewpoint neutral. Although its requirements direct

companies to provide certain types of information, the requirements do not

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mandate that the disclosed information include any particular message or

substance. See Cal. Bus. & Prof. Code § 22676-22677. In other words, the

requirements do not require platforms to disclose prescribed terms of service

or content regulation policies or outcomes. They merely require companies

to disclose the policies and practices that they have actually and voluntarily

put into place.

X Corp. argues that AB 587’s legislative history and statements by the

Attorney General establish that the law discriminates based on viewpoint.

However, “[i]t is a familiar principle of constitutional law that [the Supreme]

Court will not strike down an otherwise constitutional statute on the basis of

an alleged illicit legislative motive.” United States v. O'Brien, 391 U.S. 367,

383 (1968); accord First Resort, 860 F.3d at 1278. Where, as here, a law is

facially neutral, a court “will not look beyond its text to investigate a

possible viewpoint-discriminatory motive.” Interpipe Contracting, Inc. v.

Becerra, 898 F.3d 879, 899 (9th Cir. 2018). A court may only turn to the

legislative history and other extrinsic evidence of legislative intent if the law

includes “indicia of discriminatory motive.” Id. The Court here therefore

need not, and should not, look beyond AB 587’s text to conclude that it is

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viewpoint neutral.12

Even if the Court were to consider legislative history, however, it

would reach the same conclusion. Courts “assume that the objectives

articulated by the legislature are actual purposes of the statute, unless an

examination of the circumstances forces [the courts] to conclude that they

could not have been a goal of the legislature.” Am. Fuel & Petrochem. Mfrs.

v. O’Keefe, 903 F.3d 903, 912 (9th Cir. 2018). As the Legislature put it, AB

587 is “[i]n essence . . . a transparency measure.” 4-ER-405. The

Legislature’s express purpose in enacting the bill was “to increase

transparency around what terms of service social media companies are

setting out and how it ensures those terms are abided by.” 4-ER-459.

Plaintiff argues that the main purpose of AB 587 is to pressure social

media platforms to eliminate certain types of speech on their platforms.

AOB 41. The Legislature noted that, by requiring greater transparency

about platforms’ content-moderation rules and decisions, AB 587 may

encourage—though not require—social media companies to “become better

12
This is particularly so here, where X Corp. argues that the face of
AB 587 discriminates against companies that moderate content using the
enumerated categories, but that the legislative history shows an intent to
favor those companies. See AOB 40-41.
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corporate citizens by doing more to eliminate hate speech and

disinformation” on their platforms. 4-ER-405. But any public pressure from

consumers that results from the factual disclosures does not equate to

discriminatory treatment by the state through AB 587. Many business

disclosure statutes are designed to create transparency with the

understanding that consumers may not react favorably to the disclosed

information. See, e.g., S.F. Apartment Ass’n v. City & Cnty. of S.F., 881

F.3d 1169, 1176-77 (9th Cir. 2018) (upholding ordinance requiring landlords

to provide tenants with information about tenants’ rights organizations

before engaging in lease buyout negotiations); Am. Meat Inst., 760 F.3d at

27 (upholding regulation requiring disclosure of country-of-origin

information for meat); N.Y. State Rest. Ass’n v. N.Y.C. Bd. of Health, 556

F.3d 114 (2d Cir. 2009) (upholding ordinance requiring restaurants to post

calorie content on menus).

3. The “editorial judgments” theory does not

apply to AB 587
X Corp. argues that AB 587 is subject to strict scrutiny because its

requirements purportedly interfere with X Corp.’s “editorial judgment”

about content. AOB 42. This argument is unavailing here, just as it was in

the NetChoice cases, where both the Fifth and Eleventh Circuits refused to

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apply that theory to the states’ disclosure requirements. NetChoice (Fla.),

34 F.4th at 1233; NetChoice (Tex.), 49 F.4th 487-88.

AB 587 does not interfere with social media companies’ exercise of

editorial judgment. AB 587 only requires social media platforms to make

truthful factual disclosures about their content moderation. See Cal. Bus. &

Prof. Code §§ 22676-22677. The statute does not dictate how platforms

must moderate content, either in policy or practice. Nothing in AB 587

requires that social media companies take, or prohibits them from taking,

any action whatsoever against any item of content or user. And nothing in

AB 587 requires that social media companies’ terms of service define any

categories of content. Platforms may restrict or not restrict content as they

see fit. AB 587 creates potential liability only if a social media platform:

“(A) Fails to post terms of service in accordance with Section 22676”;

“(B) Fails to timely submit to the Attorney General a report required

pursuant to Section 22677”; or, “(C) Materially omits or misrepresents

required information in a report submitted pursuant to Section 22677.”

Cal. Bus. & Prof. Code § 22678(a)(2). The statute does not empower the

government to investigate or prosecute any other conduct including any

failure to conform company policies to the state’s supposed preferences.

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X Corp. cites a commentator’s theory that disclosure laws such as

AB 587 will purportedly cause platforms to change their editorial practices

to conform to state preferences to avoid investigations to enforce the statute.

AOB 43-44. Tellingly, though, X Corp. does not assert that—and has

submitted no evidence that—AB 587 has actually affected its content-

moderation policies or decisions. And even it had done so, this theory of

interference rests on the assumption that government officials will abuse

their limited enforcement authority to pressure companies to adopt their

preferred content-moderation policies. AOB 57. This assumption is

unwarranted, given the “presumption of regularity in the performance of

their duties by government officials.” Red Top Mercury Mines, Inc. v.

United States, 887 F.2d 198, 202-03 (9th Cir. 1989).

Nor is this theory supported by the record. The Attorney General has

not used AB 587 “to try to coerce” X Corp. to change its content-moderation

policies. AOB 42. X Corp.’s only supposed evidence of coercion is the

Attorney General’s November 2022 letter to five large social media

companies. AOB 44-45. That letter merely listed AB 587 as one of

numerous state statutes that the Attorney General would enforce to protect

California’s voters from election disinformation. 6-ER-1070. At most, the

reference to AB 587 suggests that the Attorney General would require these
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social media companies to make the informational disclosures required by

the statute. See id. (“[i]n 2024, social media platforms will also have

additional transparency obligations, as required by recent state legislation

that requires disclosures on content moderation practices” (emphases

added)). The letter did not in any way threaten to investigate or prosecute

X Corp. (or any other platform) under AB 587 if content-moderation

policies did not change.

The cases X Corp. cites (AOB 46-47) do not support its argument.

Herbert v. Lando is a defamation case that merely describes the editorial

judgment theory in dicta. 441 U.S. 153, 174 (1979). Miami Herald Pub.

Co. v. Tornillo merely stands for the proposition that the First Amendment

does not allow the state to compel a newspaper to publish political speech

that it disagrees with. 418 U.S. 241, 244 (1974).

Washington Post v. McManus, 944 F.3d 506 (4th Cir. 2019), is also

distinguishable. See NetChoice (Tex.), 49 F.4th at 488 n.38. That case

involved burdensome campaign finance regulations of political speech.

McManus, 944 F.3d at 510-12. Specifically, for every political ad posted by

an online platform (including news outlets), the law required the platform to

post “the identity of the purchaser, the individuals exercising control over

the purchaser, and the total amount paid for the ad.” Id. at 511. It also
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required platforms to collect and retain records regarding the political ad

purchasers, which were subject to state inspection. Id. at 512. While

expressly noting the narrowness of its ruling (id. at 513), the Fourth Circuit

emphasized that the regulatory scheme was unconstitutional, in large part,

because it singled out political speech—“campaign-related speech”—for

regulation. Id. at 513-14. It also emphasized that the law implicated

constitutional protections for anonymous political speech (id. at 515) and

that noncompliance would result in an injunction to remove the political ad

and, possibly, criminal penalties (id. at 514).

AB 587 does not implicate these concerns. Unlike the law challenged

in McManus, AB 587 does not require platforms to respond to political

content on the platforms; it does not give the government unlimited power to

inspect platforms’ records in connection with particular political content on

its site; and, it does not provide any penalties based on the content on the

platform, much less criminal penalties.

4. AB 587 is not analogous to the laws challenged

in X Corp.’s “speech about speech” cases
AB 587 is also not subject to strict scrutiny for purportedly regulating

“speech about speech.” AOB 47. Because, as explained above, the law does

not interfere with platform’s content moderation choices, AB 587 also does

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not interfere with the public’s right to access constitutionally protected

speech.

X Corp.’s cited cases (AOB 47-50) do not support applying the “speech

about speech” theory here. Smith v. California did not involve commercial

speech or government-mandated consumer disclosures, but rather an

ordinance imposing strict criminal liability on booksellers for selling books

containing obscene material. 361 U.S. 147, 148-49 (1959). The Court

concluded that the statute would have the functional effect of banning books

that were not obscene, and thus, constitutionally protected. Id. at 152.

Again, AB 587 does not functionally require X Corp. to change its content-

moderation policies or restrict any content.

In Entertainment Software Ass’n v. Blagojevic, 469 F.3d 641 (7th Cir.

2006), Book People, 91 F.4th at 340, and Motion Picture Ass’n of Am. v.

Specter, 315 F. Supp. 824 (E.D. Pa. 1970), the challenged laws were

invalidated not because they were “speech about speech,” but because the

laws compelled the expression of subjective opinions about others’ speech,

rather than facts. In Entertainment Software Ass’n, the court concluded that

“sexually explicit” video game labeling requirements did not qualify for

Zauderer scrutiny because they required retailers to make disclosures that

were subjective and “opinion-based” rather than purely factual and

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uncontroversial. 469 F.3d at 652. In Wong, the court came to the same

conclusion with respect to a law compelling vendors to disclose their

opinions on each book’s “sexual content rating.” 91 F.4th at 340. And in

Specter, which predated Zauderer, the court held that a state law violated the

First Amendment where it criminalized a film exhibitor’s misrepresentation

that a film is “suitable for family viewing,” because that standard was

entirely subjective. 315 F. Supp. at 825-26.

Unlike in the laws in those cases, AB 587 qualifies for Zauderer

scrutiny because the required disclosures are factual and uncontroversial, not

subjective or opinion-based. See supra at 27-33. The law is therefore not

subject to strict scrutiny merely because it purportedly compels “speech

about speech.”

II. THE DISTRICT COURT CORRECTLY RULED THAT X CORP.

IS UNLIKELY TO SUCCEED ON ITS FEDERAL PREEMPTION
CLAIM
X Corp. claims that section 230(c) of the Communications Decency

Act preempts AB 587. Section 230(c) provides that no social media

platform “shall be held liable on account of any action voluntarily taken in

good faith to restrict access to or availability of” content that is deemed

objectionable or obscene. 47 U.S.C. § 230(c)(2)(A). X Corp. contends that

AB 587 makes platforms “liable” for their content moderation actions under
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section 230(c) because the Attorney General’s authority to investigate

platforms’ material omissions or misrepresentations in the terms of service

reports pressures platforms to moderate content according to the State’s

preferences. AOB 57, 59.

X Corp.’s preemption claim fails for two primary reasons. First, the

claim is unripe because the Attorney General has not investigated or charged

X Corp. with violating AB 587, nor has there been any “genuine threat of

imminent prosecution.” Wolfson v. Brammer, 616 F.3d 1045, 1058 (9th Cir.

2010) (internal quotation marks omitted). Second, even if the claim were

ripe, it would fail on the merits because AB 587 creates liability only for

platforms’ failure to comply with their disclosure obligations, not for any act

of moderating content.

A. X Corp.’s Preemption Claim Is Unripe

At the threshold, X Corp.’s preemption claim is nonjusticiable because

it is unripe.13 Unlike the company’s First Amendment claim, which

13
Although the district court did not consider the ripeness of
X Corp.’s preemption claim, lack of ripeness nevertheless provides a proper
ground here to affirm the denial of the preliminary injunction. See DBSI/TRI
IV Ltd. P’ship v. United States, 465 F.3d 1031, 1038 (9th Cir. 2006)
(ripeness is a “jurisdictional issue[] that may be raised at any time”).

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challenges the constitutionality of the required disclosure itself, its

preemption claim is premised on a hypothetical future investigation or

enforcement action by the Attorney General. But X Corp. has not alleged,

and cannot allege, that it is subject to a “genuine threat of imminent

prosecution” under AB 587. Wolfson v. Brammer, 616 F.3d 1045, 1058 (9th

Cir. 2010) (internal quotation omitted). Neither the “mere existence of a

proscriptive statute” nor a “generalized threat of prosecution” satisfies this

requirement. Id. When evaluating whether a claimed threat of prosecution

is genuine, courts consider: “(1) whether the plaintiff has articulated a

concrete plan to violate the law in question; (2) whether the prosecuting

authorities have communicated a specific warning or threat to initiate

proceedings; and (3) the history of past prosecution or enforcement under

the challenged statute.” Id.

Here, all three factors support a conclusion that X Corp. is under no

“genuine threat of imminent prosecution” under AB 587. The first and third

considerations clearly are not present here: X Corp. has not “articulated a

concrete plan to violate” AB 587 and there is no history of the Attorney

General prosecuting anyone under AB 587.

Nor has the Attorney General ever communicated to X Corp. “a

specific warning or threat to initiate proceedings” under AB 587. Id. As

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discussed above in the context of the “editorial judgment” argument, the

Attorney General’s November 2022 letter did not threaten to investigate or

prosecute X Corp. for purported misrepresentations in terms of service

reports that would not be due for over a year. 6-ER-1070. The letter merely

reminded all five social media companies that, starting more than a year later

in 2024, they would have “additional transparency obligations” related to

their content moderation practices. Id. Even if the letter could be

understood as an implicit statement that the Attorney General intends to

carefully monitor platforms’ compliance with AB 587, absent any indication

that X Corp. has some plan to violate the statute, it does not suffice to meet

Article III’s ripeness standard.

B. Even if X Corp.’s Preemption Claim Were Ripe, It

Fails on the Merits
In any event, X Corp.’s preemption claim under section 230(c) lacks

merit. The purpose of section 230(c) “is to provide ‘protection for “Good

Samaritan” blocking and screening of offensive material.’ That means a

website should be able to act as a ‘Good Samaritan’ to self-regulate

offensive third party content without fear of liability.” Doe v. Internet

Brands, Inc., 824 F.3d 846, 852 (9th Cir. 2016) (quoting 47 U.S.C.

§ 230(c)). As this Court has explained, Congress enacted this provision

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largely in response to a 1995 New York state court decision that held an

internet service provider liable for “offensive content on its message boards

because it deleted some offensive posts but not others,” thereby effectively

forcing websites to “choose between voluntarily removing some offensive

third-party content, which would expose the site to liability for the content it

did not remove, or filtering nothing.” Id.

This Court has cautioned that the immunity conferred by section 230(c)

must not be too broadly construed. See, e.g., Internet Brands, 824 F.3d at

852-53. Section 230(c) does not declare “a general immunity from liability”

broadly relating to third-party content. Id. at 852. Rather, the statute’s

protections must be limited to “its narrow language and its purpose.” Id. at

853.

X Corp. argues that section 230(c) preempts AB 587 because AB 587’s

enforcement provisions purportedly pressure platforms to moderate content

in line with the State’s preferences. AOB 55-56. X Corp. appears to suggest

that platforms are “liable” under section 230(c) if they do not accede to the

State’s preferences because, otherwise, the Attorney General will

purportedly investigate platforms for material omissions or

misrepresentations in their terms of service reports. Id. These arguments

are without merit.

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Conflict preemption occurs only when: (1) “compliance with both

federal and state regulations is a physical impossibility” or (2) “state law

stands as an obstacle to the accomplishment and execution of the full

purposes and objectives of Congress.” CTIA, 928 F.3d at 849. The conflict

preemption analysis “does not justify a freewheeling judicial inquiry into

whether a state statute is in tension with federal objectives; such an endeavor

would undercut the principle that it is Congress rather than the courts that

preempts state law.” Chamber of Com. of U.S. v. Whiting, 563 U.S. 582,

607 (2011) (plurality opinion) (internal quotation marks omitted).

First, it is entirely possible for X Corp. to comply with both section

230(c) and AB 587. See CTIA, 928 F.3d at 849. Since section 230(c) does

not impose any obligations on X Corp., to comply with both statutes, it need

only comply with AB 587’s disclosure requirements. See Cal. Bus. Code

§§ 22676, 22677.

Second, AB 587 is not an obstacle to the congressional purpose

underlying section 230(c). See CTIA, 928 F.3d at 849. That purpose is to

allow service providers to remove objectionable third-party content without

being subject to liability for doing so or for failing to remove other third-

party content. Internet Brands, 824 F.3d at 852. But AB 587 does not make

social media platforms liable for restricting (or for not restricting) any
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content. Liability arises only if X Corp. fails to timely make the statute’s

required disclosures or if those disclosures include material omissions or

misrepresentations. Cal. Bus. & Prof. Code § 22678(a)(2). AB 587

therefore continues to allow platforms “act as [] ‘Good Samaritan[s]’ to self-

regulate offensive third party content without fear of liability.” Internet

Brands, 824 F.3d at 852 (quoting 47 U.S.C. § 230(c)). It does not create an

obstacle to section 230(c) immunity.

AB 587 does not make platforms “liable” under section 230(c) merely

because the Attorney General has the authority to investigate whether

platforms’ terms of service reports contain material omissions or

misrepresentations. Such an investigation would presumably be premised

on a material omission or misrepresentation in the platform’s disclosures,

not on the platform’s content moderation itself. To the extent X Corp. or

any other platform may be held “liable” for anything under AB 587, it would

be only for not making a disclosure in compliance with the law, not for any

of its content-moderation decisions.

X Corp.’s hypothetical related to COVID-19 “disinformation” does not

advance its argument. AOB 57. The scenario supports neither an as-applied

constitutional challenge, since it has not occurred here, nor a facial

challenge, in which “the challenger must establish that no set of

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circumstances exists under which the Act would be valid.” United States v.

Salerno, 481 U.S. 739, 745 (1987); see also Anderson v. Edwards, 514 U.S.

143, 155 n.6 (1995) (applying Salerno standard to facial preemption

challenge). In any event, AB 587 provides guardrails for this scenario: it

requires platforms to disclose how they define “disinformation” (if they do

at all, which they are not required to) and to provide “a detailed description

of [their] content moderation practices,” without limiting how that

description is provided. Cal. Bus. & Prof. Code §§ 22677(a)(3), (4). To the

extent a platform may have a unique or idiosyncratic understanding of

“disinformation,” all the platform must do is disclose its own definition and

how it relates to content moderation.

Finally, X Corp. appears to suggest that AB 587’s enforcement

provisions create “liability” under section 230 because the government may

abuse its investigative powers to pressure companies to adopt its preferred

content-moderation policies. AOB 57. As explained above, this assumption

is untrue, untenable, and not supported by the record. See Red Top Mercury

Mines, 887 F.2d at 202-03 (presumption of regularity in government

officials’ performance of their duties). It certainly does not provide a basis

for any facial preemption challenge to the statute.

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III. THE DISTRICT COURT CORRECTLY RULED THAT X CORP.

HAS NOT ESTABLISHED THE REMAINING WINTER FACTORS
NECESSARY FOR PRELIMINARY INJUNCTIVE RELIEF
Even if X Corp. had demonstrated a likelihood of success on the merits

as to any claim, it would still need to show that it would suffer irreparable

harm absent a preliminary injunction, and that the balance of the equities and

public interest favor a preliminary injunction. See Winter, 555 U.S. at 20.

The district court correctly determined that X Corp. established none of

these.

It is true that the loss of First Amendment freedoms constitutes

irreparable injury for purposes of seeking injunctive relief. See AOB 60.

However, as demonstrated above, and as the district court correctly

determined, AB 587 does not violate X Corp.’s First Amendment rights.

And X Corp. has not argued or shown that it will suffer any other irreparable

harm absent preliminary injunctive relief.

X Corp. also has not shown, and cannot show, that the balance of the

equities and the public interest weigh in its favor. The public interest favors

transparency by social media platforms so that consumers can make more

informed decisions about where they consume and disseminate news and

information. And, because section AB 587 only obligates large social media

platforms to disclose their content-moderation policies and practices, any

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burden it imposes on them is minimal.

CONCLUSION
The district court’s denial of X Corp.’s motion for a preliminary

injunction should be affirmed.

Dated: March 13, 2024 Respectfully submitted,

ROB BONTA
Attorney General of California
THOMAS S. PATTERSON
Senior Assistant Attorney General
ANTHONY R. HAKL
Supervising Deputy Attorney General

s/ Gabrielle D. Boutin
GABRIELLE D. BOUTIN
Deputy Attorney General
Attorneys for Defendant-Appellee

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24-271
IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

X CORP.,
Plaintiff-Appellant,

v.

ROB BONTA, Attorney General of

California, in his official capacity,
Defendant-Appellee.

STATEMENT OF RELATED CASES

To the best of our knowledge, there are no related cases.

Dated: March 13, 2024 Respectfully submitted,

ROB BONTA
Attorney General of California
THOMAS S. PATTERSON
Senior Assistant Attorney General
ANTHONY R. HAKL
Supervising Deputy Attorney General

s/ Gabrielle D. Boutin
GABRIELLE D. BOUTIN
Deputy Attorney General
Attorneys for Defendant-Appellee

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UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

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 Case: 24-271, 03/13/2024, DktEntry: 38.1, Page 77 of 77

CERTIFICATE OF SERVICE
Case Name: X CORP., Successor in Interest Case 24-271
to TWITTER, INC. v. Rob No.
Bonta

I hereby certify that on March 13, 2024, I electronically filed the following documents with the
Clerk of the Court by using the CM/ECF system:

ANSWERING BRIEF

I certify that all participants in the case are registered CM/ECF users and that service will be
accomplished by the CM/ECF system.
I declare under penalty of perjury under the laws of the State of California and the United States
of America the foregoing is true and correct and that this declaration was executed on March 13,
2024, at Los Angeles, California.

G. Agcaoili /s/ G. Agcaoili

Declarant Signature

SA2024300434