The funny thing about Federalism is that, to a large degree, individual states can play the same type of game as the Federal government or other states… regardless of who is in charge. California just such a case when it comes to free speech issues. The California Legislature Grand Soviet has decided to hold social media platforms liable for not stopping stochastic terrorism when they use content neutral algorithms that might lead to “hate crime” violence. SB 771 reads, as enrolled and in part:
3273.73. (a) A social media platform that violates Section 51.7, 51.9, 52, or 52.1 through its algorithms that relay content to users or aids, abets, acts in concert, or conspires in a violation of any of those sections, or is a joint tortfeasor in a violation of any of those sections, shall, in addition to any other remedy, be liable to a prevailing plaintiff for a civil penalty for each violation sufficient to deter future violations but not to exceed the following:
(1) For an intentional, knowing, or willful violation, a civil penalty of up to one million dollars ($1,000,000).
(2) For a reckless violation, a civil penalty of up to five hundred thousand dollars ($500,000).
(3) If the evidence demonstrates that the platform knew, or should have known, that the plaintiff was a minor, the court may award up to twice the penalties described in this subdivision.
(b) (1) For purposes of this section, deploying an algorithm that relays content to users may be considered to be an act of the platform independent from the message of the content relayed.
(2) A platform shall be deemed to have actual knowledge of the operations of its own algorithms, including how and under what circumstances its algorithms deliver content to some users but not to others.
Notice how they are treating “free speech” as not applying to businesses:
“In light of these trends, the Legislature affirms the urgent need to ensure that California’s civil rights protections apply with equal force in the digital sphere. The purpose of this act is not to regulate speech or viewpoint but to clarify that social media platforms, like all other businesses, may not knowingly use their systems to promote, facilitate, or contribute to conduct that violates state civil rights laws.”
The precedent this sets, if it is allowed to stand is a dangerous one for all involved. Thankfully it runs contrary to very recent prescient from the Supreme Court of the United States:
“Now the law of course already bans aiding and abetting criminal or tortious behavior. But, as the Supreme Court concluded with regard to federal law in Twitter, Inc. v. Taamneh (2023), such liability generally requires some special steps on the defendant’s part to aid the illegal actions. In particular, the Court rejected an aiding and abetting claim based on Twitter’s knowingly hosting ISIS material and its algorithm supposedly promoting it, because Twitter didn’t give ISIS any special treatment
“…
“Say a platform’s algorithm delivers content to users that contains threats that are based on political affiliation, race, religion, sexual orientation, etc., just because users have shown an interest in the content (not because of any purposeful desire to promote such threatening content in general). The platform may be liable, on the theory that it is “deemed to have actual knowledge” of what its algorithms do. Likewise if the posts contain threats aimed at interfering with free speech, free exercise of religion, and other rights. And of course if platforms are required (on pain of liability) to take down illegal threats, they will likely also take down other material that they’re worried might be seen as threatening by a future plaintiff, judge, and jury.”
Even beyond that, it is precluded by the still hotly debated §230:
“§ 230 will preclude California law from imposing such liability on platforms. But it does appear that the California Legislature wants to impose that liability.”
As much as some might declare that “there are no rules”, they still exist—in both the Constitution and statute—to restrain both your enemies and the enemies of your enemies.
The full bill can be read here, or below:
