Hate speech is a hot topic for social media platforms, especially with recent changes to X, formerly known as Twitter. X Corp., owned by Elon Musk, is suing California over legislation Gov. Gavin Newsom (D) signed into law last year before Musk acquired the social media platform.
The law, Assembly Bill 587 (A.B. 587), requires social media companies to post their terms of service online and submit reports twice a year to California’s attorney general showing how their platform addresses “hate speech,” including racism, misinformation, extremism and harassment.
In September 2022, Newsom touted the bill as a new transparency measure for tech and social media companies.
“California will not stand by as social media is weaponized to spread hate and disinformation that threaten our communities and foundational values as a country,” Newsom said.
According to the complaint, the California law violates the free speech protections under the First Amendment of the U.S. Constitution.
This raises questions on what hate speech is, who gets to define it and what level of responsibility social media companies have over posts on their platforms.
According to the Cambridge Dictionary, hate speech is defined as “public speech that expresses hate or encourages violence toward a person or group based on something such as race, religion, sex, or sexual orientation.”
However, there’s no legal definition of hate speech under U.S. law, and California’s A.B. 587 does not provide a definition for “hate speech,” either.
The state’s constitution declares, “Every person may freely speak, write, and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.”
According to researchers with the Center for Countering Digital Hate, a non-profit that monitors online hate speech, X continues to “host 86% of 300 posts reported for hate speech,” which includes racism, antisemitism and Nazi propaganda, according to the organization’s new September report.
Several landmark U.S. Supreme Court cases deal with the issue of hate speech and the First Amendment.
In Texas v. Johnson, Gregory Lee Johnson was tried and convicted under a Texas law that criminalized flag desecration after he burned the American flag outside the 1984 Republican National Convention in Dallas. In a 5-to-4 decision, the Court held that Johnson’s burning of a flag was protected expression under the First Amendment.
In the majority opinion, Justice William Brennan declared, “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”
In Snyder v. Phelps, the Westboro Baptist Church held a picket outside U.S. Marine Lance Cpl. Matthew Snyder’s funeral with signs that read “Thank God for dead soldiers” and “You’re going to hell”.
The case was decided in 2011 with the justices concluding that the First Amendment does protect protesters at a funeral from liability for intentionally inflicting emotional distress on the family of the deceased.
“Speech is powerful,” said the justices in the majority opinion. “It can stir people to action, move them to tears of both joy and sorrow, and — as it did here — inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker.”
According to X’s complaint, California’s legislation “has both the purpose and likely effect of pressuring companies such as X Corp. to remove, demonetize, or deprioritize constitutionally-protected speech that the state deems undesirable or harmful…”
The suit alleges “the law intends to pressure social media companies to ‘eliminate certain constitutionally protected content that the state believes is problematic.’”
Musk wants A.B. 587 overturned. California’s Attorney General Rob Bonta (D) said his office would look over the complaint and respond.
