Elon Musk is back in court again, or at least his attorneys are. But this time the case doesn’t involve someone suing Musk over whatever has annoyed the liberals this week. It’s Musk who is suing the state of California in an effort to block a new law known as AB587 from taking effect next year. The somewhat vague law would force social media outlets like Twitter (or “X” if you insist on using that dumb name) to publish their content moderation policies and define how they plan to keep “harmful content” off of their platforms. Musk is describing this as an invasion of privacy and a violation of the free speech rights of social media companies under both the federal and California state constitutions. Even after reading through this a couple of times, this lawsuit doesn’t look like a cut-and-dried, easy call to make. (Politico)

Elon Musk’s X Corp. is asking a federal court to overturn a California law that attempts to control toxic online discourse by requiring social media platforms to disclose their content moderation policies.

X Corp., previously known as Twitter, filed the suit Friday in federal court in Sacramento arguing that the law set to take effect next year violates the free speech rights of social media companies under the U.S. and California constitutions.

Lawmakers portray the law, which passed easily last year as AB587, as promoting transparency but X Corp. argues that it goes beyond simple disclosure and requires companies to provide detailed information about how they evaluate and regulate ill-defined categories of political speech.

The response from the bill’s authors thus far sounds more like something out of a grade school argument than a legal brief. One of them said that if Twitter “has nothing to hide” then Musk shouldn’t object to the bill. But the question is obviously a lot more complicated than that. The key factor is precisely what they want the platforms to disclose, which isn’t entirely clear.

If they want Musk to give up the source code for how the automated content moderation algorithms work, that should be a non-starter. That would just be an invitation to competitors to steal his code and for hackers to find workarounds. But it really doesn’t sound as if that’s what AB587 is demanding.

The state seems to want the companies to reveal the rules or even the “thought process” surrounding decisions as to what user content will be allowed and what will be removed. Or, in the case of some of them, the content that will be “limited” or shadowbanned. There’s one part of me that would probably be receptive to that idea. I too would like to know who is establishing the guardrails and precisely what topics are covered and where the limits are.

But at the same time, we’re talking about areas that remain highly controversial where you’re hard-pressed to find a majority agreeing on anything. And the vast majority of all of the content moderation that takes place is done automatically. There’s just too much of it being published every day of the year for a human being to look at all of it. Should “misgendering” someone be grounds for a ban or the removal of a post? If your college brings back mask mandates and you post about a recent study showing that facemasks don’t do anything to prevent viral transmission, should your “misinformation” have you removed from the platform?

Take those examples and any similar ones you care to consider and ponder how to answer a different procedural question. If company A bans misgendering and company B declares that it’s free speech, what is the state to do aside from complain about company B? It doesn’t sound as if they would be able to forcibly remove the content. But what they’re really doing may simply be opening the door to a lot of lawsuits. Once the companies put out their moderation rules, people can simply start hunting around for posts that they feel violate them and start threatening legal action. Of course, they’ll want to be careful, because that’s an ax that can end up cutting both ways.