A bill awaiting California Gov. Gavin Newsom’s signature would allow victims of online violent threats to sue social media companies as malicious conspirators.
Senate Bill 771 would amend state law to prescribe civil penalties of $1 million per threat for social media platforms that have exhibited “an intentional, knowing, or willful” track record of using algorithms that facilitate criminal language against protected groups of people.
The bill targets large companies, such as Meta, Google and X, that earn at least $100 million annually. It would allow plaintiffs to seek $500,000 for each less intentional “reckless violation” of state civil rights laws.
Attorney Ed Howard, a senior policy advocate for the Children’s Advocacy Institute at the University of San Diego School of Law, which lobbied for the bill, said it covers “credible threats of violence and harm” based on race, gender, religion, sexual orientation, immigration status and political affiliation.
“This bill only applies to the biggest social media platforms, not users,” Mr. Howard, who helped draft the legislation, said Wednesday in an interview. “Gov. Newsom should sign it because it strengthens existing laws that protect Californians from being terrorized, intimidated or menaced out of exercising their constitutional rights online.”
Mr. Newsom, a Democrat, has until Oct. 12 to sign or veto the bill.
“We don’t typically comment on pending legislation,” Diana Crofts-Pelayo, the governor’s deputy communications director, said in an email.
It remains unclear what the governor will do.
Gail Heriot, a University of San Diego law professor and independent member of the U.S. Commission on Civil Rights, warned that Mr. Newsom’s personal behavior could inspire lawsuits under the legislation if he signs it into law.
She pointed to the recent backlash against a Sept. 20 post on X from the governor’s press office, which appeared to some as threatening the Trump administration’s Homeland Security secretary. It stated: “Kristi Noem is going to have a bad day today. You’re welcome, America.”
“I hope that taught him how easily a message can be interpreted as menacing that was not intended that way,” Ms. Heriot said in an email. “That should lead him to think twice before he signs SB 771.”
Social media companies and conservative influencers have called on Mr. Newsom to veto the legislation, which the Democrat-controlled Assembly and Senate passed by wide margins last month.
“Since you love talking about free speech so much, let’s not make laws that target free speech,” Spencer Pratt, a former MTV reality show star, told the governor in a Sept. 24 video posted on X.
Hate speech vs. free speech
The Computer and Communications Industry Association says the bill would stifle free expression by encouraging frivolous lawsuits and overly cautious censorship of online posts. The trade group’s members include Google, Apple and Facebook’s parent company, Meta.
California already allows lawsuits against individuals who make incendiary comments on social media.
A summary of Senate Bill 771 posted on the California Legislature’s website cites recent increases in “hate-motivated harm” such as “anti-immigrant slurs,” “anti-LGBTQ+ disinformation,” anti-Semitism and “anti-Islamic bias” as reasons for holding social media giants accountable for their posts as well.
“California has a compelling interest in protecting its residents from targeted threats, violence, and coercive harassment, particularly when directed at historically marginalized groups,” the Legislative Counsel’s Digest states.
Several psychologists have warned that hateful social media interactions can do lasting emotional damage to people, justifying efforts to restrict bad actors.
“Hate speech is real and can be triggering,” said Thomas Plante, a professor at private Santa Clara University and member of the American Psychological Association. “I don’t know that the bill will stop it, but it might put some brakes on it, especially if the penalties are enforced.”
NetChoice, another trade group representing platforms such as X and Reddit, plans on working to overturn the legislation if Mr. Newsom signs it.
Zach Lilly, NetChoice’s deputy director of state and federal affairs, cited the bill’s “stunningly broad” assignment of legal liability to tech companies for any language that violates state civil rights laws.
“It’s one of the most facially unconstitutional bills we have come across at the state level, and could never withstand constitutional scrutiny,” Mr. Lilly said Wednesday in an email.
Some constitutional law experts reached for comment were divided on the bill’s chances of survival. They pointed out that the legislation doesn’t actually mention “hate speech,” but references only illegal comments of violence, intimidation, coercion and threats.
“California is basically prosecuting social media companies that aid or abet these crimes,” said Josh Blackman, a constitutional law expert teaching at the South Texas College of Law in Houston.
He said the courts would have to decide whether federal law allows California’s extension of legal liability to include the lucrative tech companies within its boundaries.
Ilya Shapiro, a libertarian constitutional law scholar at the Manhattan Institute, predicted that the law would only survive if lawsuits citing it avoided “hate speech” language.
“First Amendment jurisprudence is clear that ’hate speech’ – meaning offensive or bigoted or other negative speech – is protected,” Mr. Shapiro said. “What’s not protected are true threats, intimidation, harassment, and incitement of violence.”
The Foundation for Individual Rights and Expression, a Philadelphia free speech group, has called on Mr. Newsom to veto the bill as clearly unconstitutional.
“This poses a severe threat to free speech online,” Ari Cohn, FIRE’s lead counsel for tech policy, said in an email. “The only sensible, risk-averse reaction to this kind of broad liability whenever a platform’s content delivery system displays certain content is to remove any content that could even potentially be problematic.”
• Sean Salai can be reached at ssalai@washingtontimes.com.
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