Dear Governor Newsom & AG Bonta: If You Want To Stop Having To Pay Elon Musk’s Legal Bills, Stop Passing Unconstitutional Laws

California taxpayers are now on the hook for $345,576 in legal fees to… Elon Musk. Why? Because Governor Gavin Newsom and Attorney General Rob Bonta ignored warnings about the obvious Constitutional problems with AB 587, their social media “transparency” law. The law, which Google and Meta actually supported (knowing full well that they could comply while competitors would struggle), has now been partially struck down — exactly as we predicted back in 2022.

While positioned as a transparency bill (who could be against that?), the reality is that it would create a huge hassle for smaller companies, give instructions to malicious actors, and make it harder for content moderation to work well. And, it would effectively enable the California Governor/AG to demand certain types of content moderation.

Look, here’s the thing about content moderation: Companies make editorial decisions all the time about what content to allow, what to remove, what to promote, what to bury. (This is basically their job!) The government generally stays out of these decisions because, well, the First Amendment.

And yet California decided it would be fine to demand that social media companies explain exactly how they make these decisions. Not just in general terms, mind you, but with detailed data about how often they take down posts about “extremism” or “disinformation” or “hate speech.” And also revealing how many people saw that (very loosely defined!) content.

Think about how absurd this would be in any other context. Imagine California passing a law requiring the LA Times to file quarterly reports detailing every story they killed in editorial meetings, with specific statistics about how many articles about “misinformation” they chose not to run. Or demanding the San Francisco Chronicle explain exactly how many letters to the editor about “foreign political interference” they rejected. The First Amendment violation would be so obvious that newspapers’ lawyers would probably hurt themselves rushing to file the lawsuit.

But somehow, when it comes to social media, California convinced itself this was fine. (Narrator: It wasn’t fine.)

So, even as we think Elon Musk has done a terrible job with how he’s managed ExTwitter (and now, the United States government), we were happy that he agreed to challenge the law. While it was disappointing to see the district court side with the state, on appeal, the Ninth Circuit got it right, pointing out that the law was pretty clearly unconstitutional. It was one of the rare cases where Elon Musk was actually protecting free speech.

Now California has agreed to settle most of the case, conceding two crucial points: the core reporting requirements were unconstitutional, and California taxpayers need to cover Musk’s legal bills. The stipulated agreement makes clear just how thoroughly the state’s position collapsed:

IT IS HEREBY DECLARED that subdivisions (a)(3), (a)(4)(A), and (a)(5) of California Business and Professions Code section 22677 violate the First Amendment of the United States Constitution facially and as applied to Plaintiff.

IT IS HEREBY ORDERED that Defendant, as defined, shall be permanently enjoined from enforcing subdivisions (a)(3), (a)(4)(A), and (a)(5) of California Business and Professions Code section 22677. Defendant shall also be permanently enjoined from enforcing Section 22678 insofar as that section applies to violations of subdivisions (a)(3), (a)(4)(A), and (a)(5) of California Business and Professions Code section 22677.

[….]

It is ORDERED that Plaintiff shall recover from Defendant the amount of $345,576 in full compensation for the attorneys’ fees and costs incurred by Plaintiff in connection with this action and the related preliminary injunction appeal.

The invalidated sections of the law would have required social media companies to define nebulous terms like “hate speech,” “extremism,” and “disinformation,” then provide detailed reports about how they enforced these categories. Companies would have had to reveal not just their moderation practices, but specific data about content flagging, enforcement actions, and user exposure to this content.

Let’s be clear: this outcome was entirely predictable. California’s leadership wasted time and resources pushing through a law that was constitutionally dubious from the start. Now they’re spending taxpayer money to pay legal fees to the world’s wealthiest man — all because they wouldn’t listen to basic First Amendment concerns.

So here’s a modest proposal for Governor Newsom and AG Bonta: next time we warn you about constitutional problems with your tech regulation plans, maybe take those warnings seriously? It’ll save everyone time and money — and bonus, you won’t have to cut checks to Elon Musk.