q130/random_k2/random_2.md

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

X CORP.,

                     Plaintiff - Appellant,

   v.

ROBERT BONTA, in his official
capacity as Attorney General of
California,

                     Defendant - Appellee.

No. 24-271

D.C. No.
2:23-cv-01939-
WBS-AC

OPINION

Appeal from the United States District Court
for the Eastern District of California
William B. Shubb, District Judge, Presiding

Argued and Submitted July 17, 2024
San Francisco, California

Filed September 4, 2024

Before: MILAN D. SMITH, JR., MARK J. BENNETT,
and ANTHONY D. JOHNSTONE, Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.

2

X CORP. V. BONTA

SUMMARY*

First Amendment / Social Media Platforms

The  panel  reversed  the  district  court’s  order  denying
social  media  platform  owner  X  Corp.’s  motion  for  a
preliminary injunction  to enjoin enforcement  of  California
Assembly Bill AB 587 (AB 587), which requires large social
media companies to post their terms of service and to submit
reports  to  the  Attorney  General  of  California  (the  State)
about  their  terms  of  service  and  their  content-moderation
policies and practices.

The  Content  Category  Report  provisions  of  AB  587
require  social  media  companies  to  submit  to  the  State  a
semiannual report detailing whether and how they define six
categories of content: hate speech or racism, extremism or
radicalization,
or  misinformation,
harassment,  foreign  political  interference,  and  controlled
substance distribution.

disinformation

The panel held that X Corp. was likely to succeed on the
merits  of  its  claim  that  the  Content  Category  Report
provisions  facially  violate  the  First  Amendment.   A  facial
challenge  is  permissible  because  the  Content  Category
Report provisions raise the same First Amendment issues for
every social media company.  The Content Category Report
provisions compel non-commercial speech, and are subject
to  strict  scrutiny  because  the  provisions  are  content-
based.  The Content Category Report provisions likely fail
strict scrutiny because they are not narrowly tailored to serve

* This summary constitutes no part of the opinion of the court.  It has
been prepared by court staff for the convenience of the reader.

X CORP. V. BONTA

3

the  State’s  purported  goal  of  requiring  social  media
companies  to  be  transparent  about  their  policies  and
practices.

The  panel  held  that  the  remaining  factors  weighed  in

favor of a preliminary injunction.

Accordingly,  the  panel  reversed  the  district  court’s
denial  of  a  preliminary  injunction,  and  remanded  with
instructions to enter a preliminary injunction consistent with
the opinion and to determine whether the Content Category
Report provisions are severable from the remainder of AB
587  and,  if  so,  which,  if  any,  of  the  remaining  challenged
provisions should also be enjoined.

COUNSEL

Joel  L.  Kurtzberg  (argued),  Floyd  Abrams,  Jason  D.
Rozbruch, and Lisa J. Cole, Cahill Gordon & Reindel LLP,
New York, New York; William R. Warne and Meghan M.
Baker,  Downey  Brand  LLP,  Sacramento,  California;  for
Plaintiff-Appellant.

Gabrielle  D.  Boutin  (argued),  Deputy  Attorney  General;
Anthony  R.  Hakl,  Supervising  Deputy  Attorney  General;
Thomas S. Patterson, Senior Deputy Attorney General; Rob
Bonta,  Attorney  General  of  California;  Office  of  the
California  Attorney  General,  Sacramento,  California;  for
Defendant-Appellee.

Robert Corn-Revere  and Joshua A. House,  Foundation  for
Individual  Rights  and  Expression,  Washington,  D.C.,  for
Amicus  Curiae  Foundation  for  Individual  Rights  and
Expression.

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X CORP. V. BONTA

Trenton H. Norris, Mark W. Brennan, J. Ryan  Thompson,
Sophie Baum, and Alexander Tablan, Hogan Lovells LLP,
San  Francisco,  California;  Cory  L.  Andrews  and  John  M.
Masslon  II,  Washington  Legal  Foundation,  Washington,
D.C.; for Amicus Curiae Washington Legal Foundation.

Gene C. Schaerr, Schaerr Jaffe LLP, Washington, D.C., for
Amici Curiae Professor Eugene Volokh and Protect the First
Foundation.

Megan  L.  Brown,  Jeremy  J.  Broggi,  and  Boyd  Garriott,
Wiley Rein LLP, Washington, D.C.; Jonathan D. Urick and
Maria  C.  Monaghan,  United  States  Chamber  Litigation
Center; Washington, D.C.; for Amicus Curiae United States
of America Chamber of Commerce.

Bruce D. Brown, Katie Townsend, Gabe Rottman, Grayson
Clary and Emily Hockett, Reporters Committee for Freedom
of the Press, Washington, D.C.; for Amicus Curiae Reporters
Committee for Freedom of the Press.

David  A.  Greene  and  Aaron  Mackey,  Electronic  Frontier
Foundation,  San  Francisco,  California,  for  Amicus  Curiae
Electronic Frontier Foundation.

Jacob M. Karr, Technology Law and Policy Clinic at New
York University, New York, New York; G.S. Hans, Cornell
Law  School,  Ithaca,  New  York;  for  Amici  Curiae  First
Amendment and Internet Law Scholars.

Michelle Quist  and Lauren D. Wigginton,  Buchalter APC,
Salt Lake City, Utah; Jon M. Greenbaum, Edward G. Caspar,
and Marc P. Epstein, Lawyers' Committee for Civil Rights
Under Law, Washington, D.C.; for Amicus Curiae Lawyers'
Committee for Civil Rights Under Law.

X CORP. V. BONTA

5

Viviana M. Hanley and Nathanial I. Levy, Deputy Attorneys
General; Michael L. Zuckerman, Deputy Solicitor General;
Jeremy Feigenbaum, Solicitor General; Metthew J. Platkin,
Attorney General of New Jersey; Office of the New Jersey
Attorney General, Trenton, New Jersey; Kristin K. Mayes,
Attorney General of Arizona, Office of the Arizona Attorney
General,  Phoenix,  Arizona;  Philip  J.  Weiser,  Attorney
General  of  Colorado,  Office  of  the  Colorado  Attorney
General,  Denver,  Colorado;  William  Tong,  Attorney
General of Connecticut, Office of the Connecticut Attorney
General,  Hartford,  Connecticut;  Kathleen
Jennings,
Attorney  General  of  Delaware,  Office  of  the  Delaware
Attorney  General,  Wilmington,  Delaware;  Brian  L.
Schwalb,  Attorney  General  of  the  District  of  Columbia,
Office  of  the  District  of  Columbia  Attorney  General,
Washington,  D.C.;  Kwame  Raoul,  Attorney  General  of
Illinois,  Office  of  the  Illinois  Attorney  General,  Chicago,
Illinois; Aaron M. Frey, Attorney General of Maine, Office
of  the  Maine  Attorney  General,  Augusta,  Maine;  Anthony
G.  Brown,  Attorney  General  of  Maryland,  Office  of  the
Maryland  Attorney  General,  Baltimore,  Maryland;  Andrea
J. Campbell, Attorney General of Massachusetts, Office of
the  Massachusetts
Boston,
Attorney
Massachusetts; Dana Nessel, Attorney General of Michigan,
Office  of
the  Michigan  Attorney  General,  Lansing,
Michigan;  Keith  Ellison,  Attorney  General  of  Minnesota,
Office  of  the  Minnesota  Attorney  General,  St.  Paul,
Minnesota;  Aaron  D.  Ford,  Attorney  General  of  Nevada,
Office  of  the  Nevada  Attorney  General,  Carson  City,
Nevada;  Letitia  James,  Attorney  General  of  New  York,
Office of the New York Attorney General, New York, New
York;  Ellen  F.  Rosenblum,  Attorney  General  of  Oregon,
Office  of  the  Oregon  Attorney  General,  Salem,  Oregon;

General,

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X CORP. V. BONTA

Michelle  A.  Henry,  Attorney  General  of  Pennsylvania,
Office  of  Harrisburg,  Pennsylvania;  Charity  R.  Clark,
Attorney  General  of  Vermont,  Office  of  the  Vermont
Attorney  General,  Montpelier,  Vermont;  Robert  M.
Ferguson,  Attorney  General  of  Washington,  Office  of  the
Washington  Attorney  General,  Olympia,  Washington;  for
Amici  Curiae  States  of  New  Jersey,  Arizona,  Colorado,
Connecticut,  Delaware,  The  District  of  Columbia,  Illinois,
Maine,  Maryland,  Massachusetts,  Michigan,  Minnesota,
Nevada,  New  York,  Oregon,  Pennsylvania,  Vermont,  and
Washington.

Jason  S.  Harrow  and  Charles  Gerstein,  Gerstein  Harrow
LLP, Los Angeles, California, for Amicus Curiae  Institute
for Strategic Dialogue.

Megan  Iorio  and  Schuyler  Standley,  Electronic  Privacy
Information  Center,  Washington,  D.C.,  for  Amicus  Curiae
Electronic Privacy Information Center.

Kristen G. Simplicio and Cort T. Carlson, Tycko & Zavareei
LLP, Washington, D.C.; John Yang, Niyati Shah, and Noah
Baron,  Asian  Americans  Advancing  Justice,  Washington,
D.C.;  for  Amicus  Curiae  Asian  Americans  Advancing
Justice.

X CORP. V. BONTA

7

OPINION

M. SMITH, Circuit Judge:

The California State Legislature enacted Assembly Bill
587 (AB 587) in September 2022.  Cal. Bus. & Prof. Code
§§ 22675–81.
  The  law  requires  large  social  media
companies to, inter alia, post their terms of service and to
submit,  on  a  semiannual  basis,  reports  to  the  Attorney
General of California (the State) about their terms of service
and content-moderation policies and practices.  X Corp., the
owner of the large social media platform X (formerly known
as  Twitter),  moved  for  a  preliminary  injunction  to  enjoin
enforcement  of  AB  587  on  free  speech  and  federal
preemption  grounds.    The  district  court  denied  X  Corp.’s
motion, finding that X Corp. failed to establish a likelihood
of success on the merits.  X Corp. appeals.  For the reasons
below, we reverse and remand to the district court for further
proceedings consistent with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

AB  587  has  three  primary  elements:  (1) a  requirement
that  social  media  companies 1 publicly  post  their  terms  of
service,  including  processes  for  flagging  content  and
potential actions that may be taken with respect to flagged
content (Terms of Service (TOS) Posting), see Cal. Bus. &
Prof.  Code  § 22676,  (2) a  requirement  that  social  media

1 AB 587 does not apply to social media companies with gross annual
revenues of less than $100 million, Cal. Bus. & Prof. Code § 22680, nor
to  “an  internet-based  service  or  application  for  which  interactions
between users are limited to direct messages, commercial transactions,
consumer reviews of products, sellers, services, events, or places, or any
combination thereof,” id. § 22681.

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X CORP. V. BONTA

racism;

(b) extremism  or

companies submit to the State a semiannual report detailing
their TOS and content-moderation practices including, if at
all,  how  the  terms  of  service  define  and  address  (a) hate
speech  or
radicalization;
(c) disinformation  or  misinformation;  (d) harassment;  and
(e) foreign  political  interference,  as  well  as  statistics  on
content  that  was  flagged  by  the  social  media  company  as
belonging  to  any  of  the  categories  (TOS  Report),  see  id.
§ 22677, 2 and  (3) a  penalty  provision,  whereby  the  social
media  company  may  be  sued  in  court  for,  inter  alia,
materially omitting or misrepresenting required information
and may be liable to pay up to $15,000 per violation per day,
see id. § 22678.3

On September 8, 2023, X Corp. filed a complaint against
the  State  seeking  declaratory  relief  and  injunctive  relief
barring the law’s enforcement.  The complaint alleges three
causes of action challenging the TOS Posting, TOS Report,
and penalty provision of AB  587  as:  (1) a  violation of  the
free speech clauses of the U.S. and California Constitutions;
(2) a  violation  of  the  Dormant  Commerce  Clause;  and
(3) federally  preempted  pursuant  to  the  Communications
Decency Act, 47 U.S.C. § 230(c).  X Corp. filed a motion for
preliminary  injunction  based  on  its  free  speech  and

2 AB  587  was  subsequently  amended  to  add  to  this  list  “[c]ontrolled
substance distribution.”  2023 Cal. Legis. Serv. 7680 (West).

3 In assessing the amount of any penalty, a court is to consider whether
the social media company has made a reasonable, good faith attempt to
comply  with  the  provisions  of  the  statute.    Cal.  Bus.  &  Prof.  Code
§ 22678(a)(3).

X CORP. V. BONTA

9

preemption  claims,  seeking  to  enjoin  the  State  from
enforcing the challenged provisions of AB 587.4

On  December  28,  2023,  the  district  court  denied  X
Corp.’s motion.  The court began its analysis with X Corp.’s
First Amendment claim.5  The court held that X Corp. was
unlikely to prevail because the TOS Posting and TOS Report
requirements appeared constitutionally permissible in  light
of  Zauderer  v.  Office  of  Disciplinary  Counsel  of  Supreme
Court of Ohio, 471 U.S.  626 (1985),  the  Supreme  Court’s
test for compelled commercial speech.  See X Corp. v. Bonta,
No.  23-cv-01939,  2023  WL  8948286,  at  *1–2  (E.D.  Cal.
Dec. 28, 2023).

The  court’s  analysis  of  the  TOS  Report  requirement
focused  primarily  on  the  provisions  requiring  that  social
media  companies  report  whether  and  how  they  define  and
address  certain  enumerated  content  categories.    Id.  at  *2.
The court acknowledged that such reports do “not so easily
fit the traditional definition of commercial speech” because
they  “are  not  advertisements”  and  because  “social  media
companies  have  no  particular  economic  motivation  to
provide them.”  Id.  However, the court applied Zauderer to
those provisions nevertheless so as to “follow[] the lead of
the Fifth and Eleventh Circuits.”  Id. (citing NetChoice, LLC
v. Paxton, 49 F.4th 439, 485 (5th Cir. 2022), rev’d on other
grounds sub nom. Moody v. NetChoice, LLC, 144 S. Ct. 2383

4 X Corp. did not seek a preliminary injunction based upon the Dormant
Commerce Clause.

5 The district court did not  analyze X Corp.’s free speech claim under
Article  I,  Section  2,  of  the  California  Constitution,  nor  do  the  parties
meaningfully  address  this  claim  on  appeal.    Because  we  hold  that  X
Corp. is likely to succeed on its First Amendment claim, we do not reach
X Corp.’s free speech claim pursuant to the California Constitution.

10

X CORP. V. BONTA

to

(2024)  (“NetChoice  (Tex.)”),  and  NetChoice,  LLC  v.  Att’y
Gen., Fla., 34 F.4th 1196, 1230 (11th Cir. 2022), rev’d on
other grounds sub nom. Moody, 144 S. Ct. 2383 (“NetChoice
(Fla.)”)).    The  court  then  concluded  that  the  TOS  Report
requirement satisfies Zauderer.  Id.  The court reasoned that
the  provisions  require  speech  that  is  “purely  factual”  and
“uncontroversial”  because  they  “merely  require[]  social
media  companies
their  existing  content
identify
moderation  policies,  if  any,  related  to  the  specified
categories” and the “mere fact that the reports may be ‘tied
in  some  way  to  a  controversial  issue’  does  not  make  the
reports themselves controversial.”  Id. (quoting CTIA - The
Wireless Ass’n v. City of Berkeley, 928 F.3d 832, 845 (9th
Cir.  2019)  (“CTIA  II”)).    The  court  rejected  X  Corp.’s
argument  that  the  TOS  Report  requirement  is  “unduly
burdensome,” explaining that “AB 587 does not require that
a  social  media  company  adopt  any  of  the  specified
categories”  of  speech,  and  that  in  any  event  “Zauderer  is
concerned not merely with logistical or economic burdens,
but  burdens  on  speech.”    Id.    It  further  held  that  the  TOS
Report  requirement  is  “reasonably  related  to  a  substantial
government interest in requiring social media companies to
be  transparent  about  their  content  moderation  policies  and
practices  so  that  consumers  can  make  informed  decisions
about  where  they  consume  and  disseminate  news  and
information.”  Id.

The district court also determined that X Corp. had failed
to show a likelihood of success on its claim that AB 587 is
preempted  by  47  U.S.C.  §  230(c).    Id.  at  *3.    The  court
observed  that  the  purpose  of  section  230(c)  “is  to  provide
‘protection for “Good Samaritan” blocking and screening of
offensive  material’”  so  that  a  website  may  “self-regulate
offensive third party content without fear of liability.”  Id.

X CORP. V. BONTA

11

(quoting Doe v. Internet Brands, Inc., 824 F.3d 846, 851–52
(9th  Cir.  2016)).  The court concluded that  AB  587 is not
preempted  because,  under  its  plain  language,  it  “does  not
provide  for  any  potential  liability  stemming  from  a
company’s  content  moderation  activities  per  se,”  only  for
failing to make AB 587’s required disclosures.  Id.

On January 12, 2024, X Corp. timely filed notice of its
appeal.  The provision of AB 587 most relevant in this appeal
is section 22677(a), which reads in its entirety:

(a) On a semiannual basis in accordance with
subdivision (b), a social media company shall
submit  to  the  Attorney  General  a  terms  of
service  report.    The  terms  of  service  report
shall include, for each social media platform
owned or operated by the company, all of the
following:

(1) The current version of the terms of service
of the social media platform.

(2)  If  a  social  media  company  has  filed  its
first
report,  a  complete  and  detailed
description  of  any  changes  to  the  terms  of
service since the previous report.

(3)  A  statement  of  whether  the  current
version of the terms of service defines each
of the following categories of content, and, if
so,
those  categories,
the  definitions  of
including any subcategories:

(A) Hate speech or racism.

(B) Extremism or radicalization.

(C) Disinformation or misinformation.

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X CORP. V. BONTA

(D) Harassment.

(E) Foreign political interference.

(F) Controlled substance distribution.6

(4)  A  detailed  description  of  content
moderation  practices  used  by  the  social
media company for that platform, including,
but not limited to, all of the following:

(A)  Any  existing  policies  intended  to
address
the  categories  of  content
described in paragraph (3).

(B)  How  automated  content  moderation
systems  enforce  terms  of  service  of  the
social  media  platform  and  when  these
systems involve human review.

(C)  How  the  social  media  company
responds  to user  reports  of violations of
the terms of service.

(D)  How  the  social  media  company
would  remove
individual  pieces  of
content, users, or groups that violate the
terms  of  service,  or  take  broader  action
against individual users or against groups
of users that violate the terms of service.

(E)  The  languages  in  which  the  social
media  platform  does  not  make  terms  of
service available, but does offer product

6 As  noted  above,  section  22677(a)(3)(F)  was  added  subsequent  to  X
Corp. filing its lawsuit in the district court.

X CORP. V. BONTA

13

features,  including,  but  not  limited  to,
menus and prompts.

(5)  (A)  Information  on  content  that  was
flagged  by  the  social  media  company  as
content  belonging  to  any  of  the  categories
described  in  paragraph  (3),  including  all  of
the following:

(i) The total number of flagged items of
content.

(ii) The total number of actioned items of
content.

(iii) The total number of actioned items of
content  that  resulted  in  action  taken  by
the  social  media  company  against  the
user or group of users responsible for the
content.

(iv) The total number of actioned items of
content that were removed, demonetized,
or  deprioritized  by  the  social  media
company.

(v)  The  number  of  times  actioned  items
of content were viewed by users.

(vi) The number of times actioned items
of content were shared, and the number of
users  that  viewed  the  content  before  it
was actioned.

(vii) The number of times users appealed
social  media  company  actions  taken  on
that platform and the number of reversals
of  social  media  company  actions  on

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X CORP. V. BONTA

appeal  disaggregated  by  each  type  of
action.

(B) All information required by subparagraph
(A) shall be disaggregated into the following
categories:

(i) The category of content, including any
relevant
in
paragraph (3).

categories

described

(ii) The type of content, including, but not
limited  to,  posts,  comments,  messages,
profiles of users, or groups of users.

(iii)  The  type  of  media  of  the  content,
including, but not limited to, text, images,
and videos.

the  content  was  flagged,
(iv)  How
including, but not limited to, flagged by
company  employees  or  contractors,
flagged by artificial intelligence software,
flagged  by  community  moderators,
flagged  by  civil  society  partners,  and
flagged by users.

(v)  How
the  content  was  actioned,
including, but not limited to, actioned by
company  employees  or  contractors,
intelligence
actioned
software,
community
moderators,  actioned  by  civil  society
partners, and actioned by users.

by
actioned

artificial
by

X CORP. V. BONTA

15

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction pursuant to 28 U.S.C. § 1292(a)(1)
to review the denial of a preliminary injunction.  Creech v.
Idaho Comm’n of Pardons & Parole, 94 F.4th 851, 854 (9th
Cir. 2024).  We review the denial of a preliminary injunction
for  abuse  of  discretion,  but  we  review  de  novo  the
underlying issues of law.  Cal. Chamber of Com. v. Council
for  Educ.  &  Rsch.  on  Toxics,  29  F.4th  468,  475  (9th  Cir.
2022).

“The appropriate legal standard to analyze a preliminary
injunction  motion  requires  a  district  court  to  determine
whether  a  movant  has  established  that  (1) [it]  is  likely  to
succeed on the merits of [its] claim, (2) [it] is likely to suffer
irreparable  harm  absent  the  preliminary  injunction,  (3) the
balance of equities tips in [its] favor, and (4) a preliminary
injunction is in the public interest.”  Baird v. Bonta, 81 F.4th
1036,  1040  (9th  Cir.  2023);  see  Winter  v.  Nat.  Res.  Def.
Council,  Inc.,  555  U.S.  7,  20  (2008).    Because  “the  party
opposing injunctive relief is a government entity” here, the
third  and  fourth  factors  “merge.”    Fellowship  of  Christian
Athletes v. San Jose Unified Sch. Dist. Bd. of Educ., 82 F.4th
664, 695 (9th Cir. 2023) (en banc) (quoting Nken v. Holder,
556 U.S. 418, 435 (2009)).

ANALYSIS

On appeal, X Corp. challenges the district court’s ruling
on  the  TOS  Report  requirement  and  penalty  provision  as
applied to the TOS Report requirement.  X Corp. does not
appeal the district court’s denial of a preliminary injunction
as to the TOS Posting requirement, Cal. Bus. & Prof. Code
§ 22676.

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X CORP. V. BONTA

X Corp. argues that the district court erred by finding that
X  Corp.  did  not  establish  a  likelihood  of  success  on  the
merits  because
is
(1) the  TOS  Report
compelled, non-commercial speech subject to strict scrutiny,
not the lower tier of scrutiny in Zauderer, (2) regardless, the
TOS  Report  requirement  fails  under  any  level  of  scrutiny,
and  (3) section  230’s  broad  immunity  precludes  liability
under AB 587.

requirement

X Corp. seeks to reverse the district court’s ruling as to
the entirety of the TOS Report requirement.  But the thrust
of the appeal concerns section 22677(a)(3), which requires
that  social  media  companies  report  whether  and  how  they
define six categories of content, and sections 22677(a)(4)(A)
and (a)(5), which directly incorporate section 22677(a)(3).
For  ease  of  reference,  we  refer  to  these  sections  as  the
Content Category Report provisions.

For the reasons below, we hold that the Content Category
Report provisions likely compel non-commercial speech and
are  subject  to  strict  scrutiny,  under  which  they  do  not
survive.  We reverse the district court on that basis.  Because
we  reverse  on  free  speech  grounds,  we  need  not  reach  X
Corp.’s section 230 theory.  We remand to the district court
to  determine  in  the  first  instance  whether  the  Content
Category  Report  provisions  are  severable  from
the
remainder  of  AB  587,  and  if  so,  which,  if  any,  of  the
remaining  challenged  provisions  should  also  be  subject  to
the preliminary injunction.7

7 We do not decide whether sections 22677(a)(1), (2), and (4)(B)–(E)—
which require that social media companies disclose the text of their TOS
and describe their enforcement mechanisms, without mention of specific

X CORP. V. BONTA

17

I.  X  Corp.  is  likely  to  succeed  in  showing  that  the
Content  Category  Report  provisions  facially violate
the First Amendment.

“For  a  host  of  good  reasons,  courts  usually  handle
constitutional claims case by case, not en masse.”  Moody,
144 S. Ct. at 2397.  The Supreme Court “has therefore made
facial  challenges  hard  to  win.”    Id.    In  a  typical  facial
challenge,  a  plaintiff  cannot
succeed  “unless  he
‘establish[es] that no set of circumstances exists under which
the [law] would be valid,’ or he shows that the law lacks a
‘plainly legitimate sweep.’”  Id. (alterations in original) (first
quoting United States v. Salerno, 481 U.S. 739, 745 (1987);
then quoting Wash. State Grange v. Wash. State Republican
Party, 552 U.S. 442, 449 (2008)).

less  demanding

However, in First Amendment cases, the Supreme Court
“has lowered that very high bar.”  Id.  “To provide breathing
the  Supreme  Court  has
room  for  free  expression,”
“substituted  a
though  still  rigorous
standard.”    Id.  (cleaned  up)  (quoting  United  States  v.
Hansen, 599 U.S. 762, 769 (2023)); see also Tucson v. City
of  Seattle,  91  F.4th  1318,  1327  (9th  Cir.  2024).    “[I]f  the
law’s  unconstitutional  applications  substantially  outweigh
its  constitutional  ones,”  then  a  court  may  sustain  a  facial
challenge to the law and strike it down.  Moody, 144 S. Ct.
at  2397.    As  Moody  clarified,  a  First  Amendment  facial
challenge  has  two  parts:  first,  the  courts  must  “assess  the
state  laws’  scope”;  and  second,  the  courts  must  “decide

content  categories—are  facially  constitutional.    Neither  party—either
below  or  on  appeal—briefed  what  should  happen  to  the  remainder  of
section 22677 if the Content Category Report provisions were found to
be likely unconstitutional.

18

X CORP. V. BONTA

which of the laws’ applications violate the First Amendment,
and . . . measure them against the rest.”  Id. at 2398.

“[N]o one has paid much attention to” the requirements
for  a  facial  challenge  so  far  in  this  case.    Id.  at  2397.
Nevertheless,  we  conclude  that  a  facial  challenge  is
permissible here.  That is because all aspects of the Content
Category  Report,  in  every  application  to  a  covered  social
media company, raise the same First Amendment issues.  As
explained  in  further  detail  below,  every  Content  Category
Report  must  detail  the  company’s  policies  and  actions
concerning  certain  state-specified  categories  of  content
(even if only to detail the company’s decision not to define
the enumerated categories of section 22677(a)(3)).  In effect,
the  Content  Category  Report  provisions  compel  every
covered social media company to reveal its policy opinion
about  contentious  issues,  such  as  what  constitutes  hate
speech  or  misinformation  and  whether  to  moderate  such
expression.8

8 X  Corp.  cites  legislative  history  and  statements  from  the  California
State Attorney General in describing the indirect chilling effects AB 587
may have by generating public controversy about the actions of social
media companies and thereby  pressuring them to change their content
moderation policies.  No matter how a social media company chooses to
moderate such content, the company will face backlash from its users
and the public.  That is true even if the company decides not to define
the enumerated categories, because they will draw criticism for under-
moderating their community.  While we account for these effects in our
analysis, whether State officials intended these effects plays no role in
our analysis of the merits of this facial challenge. See B & L Prods., Inc.
v. Newsom, 104 F.4th 108, 116 (9th Cir. 2024) (citing United States v.
O’Brien,  391  U.S.  367,  383  n.30  (1968))  (rejecting  “the  idea  that
‘legislative motive’” of indirectly chilling speech “‘is a proper basis for
declaring a statute unconstitutional’”).

X CORP. V. BONTA

19

Thus, the Content Category Report provisions raise the
same  First  Amendment  issues  for  every  covered  social
media company.  That is true from the face of the law; we
need  not  “speculate  about  ‘hypothetical’  or  ‘imaginary’
cases.”    See  Wash.  State  Grange,  552  U.S.  at  450.    We
therefore proceed to consider whether the Content Category
Report  provisions  are  likely  to  survive  X  Corp.’s  First
Amendment facial challenge.

A.  The Content Category Report provisions compel
non-commercial  speech  and are  subject to strict
scrutiny.

regulation

One  of  the  First  Amendment’s  core  purposes  is  “to
preserve an uninhibited marketplace of ideas in which truth
will ultimately prevail.”  McCullen v. Coakley, 573 U.S. 464,
476  (2014)  (quoting  FCC  v.  League  of  Women  Voters  of
Cal.,  468  U.S.  364,  377  (1984)).    In  evaluating  whether  a
regulation violates the First Amendment, courts “distinguish
between  content-based  and  content-neutral  regulations  of
speech.”  Vidal v. Elster, 602 U.S. 286, 292 (2024) (internal
quotation marks omitted) (quoting Nat’l Inst. of Fam. & Life
Advocs. v. Becerra, 585 U.S. 755, 766 (2018)).  A content-
based
its
communicative content,” restricting discussion of a subject
matter or topic.  Reed v. Town of Gilbert, 576 U.S. 155, 163
(2015).  “As a general matter,” a content-based regulation is
“presumptively unconstitutional and may be justified only if
the government proves that [it is] narrowly tailored to serve
compelling  state  interests.”    Nat’l  Inst.  of  Fam.  &  Life
Advocs., 585 U.S. at 766 (quoting Reed, 576 U.S. at 163).
When  a  state  “compel[s]  individuals  to  speak  a  particular
message,” the state “alter[s] the content of their speech,” and
engages  in  content-based  regulation.    Id.  (cleaned  up)
(quoting Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487

speech  based  on

“target[s]

20

X CORP. V. BONTA

U.S. 781, 795 (1988)).  The First Amendment’s guarantee of
freedom  of  speech  makes  no  distinction  of  “constitutional
significance”  “between  compelled  speech  and  compelled
silence.” Riley, 487 U.S. at 796–97.

In  general,  laws  regulating  commercial  speech  are
subject to a lesser standard of scrutiny.  See Bolger v. Youngs
Drug Prods. Corp., 463 U.S. 60, 64–65 (1983) (discussing
recognition and  evolution of  commercial  speech  doctrine).
This holds true for both corporations and individuals alike.
See Pac. Gas & Elec. Co. v. Pub. Utils. Comm’n of Cal., 475
U.S. 1, 16 (1986).  Commercial speech is “usually defined
as  speech  that  does  no  more  than  propose  a  commercial
transaction.”  United States v. United Foods, Inc., 533 U.S.
405,  409  (2001).    “Courts  view  this  definition  as  just  a
starting  point,  however,  and  instead  try  to  give  effect  to  a
‘common-sense  distinction’  between  commercial  speech
and  other  varieties  of  speech.”    Ariix,  LLC  v.  NutriSearch
Corp.,  985  F.3d  1107,  1115  (9th  Cir.  2021)  (cleaned  up)
(quoting Jordan v. Jewel  Food  Stores, Inc., 743 F.3d 509,
516–17  (7th  Cir.  2014)).    Indeed,  the  “commercial  speech
analysis  is  fact-driven,  due  to  the  inherent  difficulty  of
drawing  bright  lines  that  will  clearly  cabin  commercial
speech in a distinct category.”  First Resort, Inc. v. Herrera,
860  F.3d  1263,  1272  (9th  Cir.  2017)  (internal  quotation
marks  omitted)  (quoting  Greater  Balt.  Ctr.  for  Pregnancy
Concerns, Inc. v. Mayor & City Council of Balt., 721 F.3d
264, 284 (4th Cir. 2013)).

Because of the difficulty of drawing clear lines between
commercial and non-commercial speech, the Supreme Court
in Bolger outlined three factors to consider.  463 U.S. at 64–
67.    “Where  the  facts  present  a  close  question,  ‘strong
support’  that  the  speech  should  be  characterized  as
commercial  speech  is  found  where  [1] the  speech  is  an

X CORP. V. BONTA

21

advertisement, [2] the speech refers to a particular product,
and [3] the speaker has an economic motivation.”  Hunt v.
City  of  L.A.,  638  F.3d  703,  715  (9th  Cir.  2011)  (citing
Bolger, 463 U.S. at 66–67).  These so-called Bolger factors
are  important  guideposts,  but  they  are  not  necessarily
dispositive.  See  Bolger,  463  U.S. at 67 n.14  (“Nor do we
mean  to  suggest  that  each  of  the  characteristics  present  in
this case must necessarily be present in order for speech to
be commercial.”); Dex Media W., Inc. v. City of Seattle, 696
F.3d 952, 958 (9th Cir. 2012).

Commercial speech is generally subject to intermediate
scrutiny.  Nat’l Ass’n of Wheat Growers v. Bonta, 85 F.4th
1263, 1266 (9th Cir. 2023).  However, an exception applies
to compelled commercial speech that is “purely factual and
uncontroversial.”    Id.;  see  Pac.  Coast  Horseshoeing  Sch.,
Inc.  v.  Kirchmeyer,  961  F.3d  1062,  1074  (9th  Cir.  2020)
(citing  Zauderer  as  a  variation  in  the  treatment  of  speech
“within the class of commercial speech”).  “In that scenario,
the government need only demonstrate the compelled speech
survives  a  lesser  form  of  scrutiny  akin  to  a  rational  basis
test.”  Nat’l Wheat, 85 F.4th at 1266.

State legislatures do not have “freewheeling authority to
declare  new  categories  of  speech  outside  the  scope  of  the
First Amendment.”  United States v. Stevens, 559 U.S. 460,
472,  (2010).    Thus,  “without  persuasive  evidence  that  a
novel restriction  on content is part of  a long  (if heretofore
unrecognized) tradition of proscription, a legislature may not
revise the ‘judgment [of] the American people,’ embodied in
the First Amendment, ‘that the benefits of its restrictions on
the  Government  outweigh  the  costs.’”    Brown  v.  Entm’t
Merchs.  Ass’n,  564  U.S.  786,  792  (2011)  (alteration  in
original) (quoting Stevens, 559 U.S. at 470).

22

X CORP. V. BONTA

Here, the Content Category Reports are not commercial
speech.    They  require  a  company  to  recast  its  content-
moderation  practices  in  language  prescribed  by  the  State,
implicitly opining on whether and how certain controversial
categories of content should be moderated.  As a result, few
indicia  of  commercial  speech  are  present  in  the  Content
Category Reports.

First,  the  Content  Category  Reports  do  not  satisfy  the
“usual[]  defin[ition]”  of  commercial  speech—i.e.,  “speech
that does no more than propose a commercial transaction.”
See United Foods, Inc., 533 U.S. at 409; see also IMDb.com
Inc.  v.  Becerra,  962  F.3d  1111,  1122  (2020)  (“Because
IMDb’s  public  profiles  do  not  ‘propose  a  commercial
transaction,’ we need not reach the Bolger factors.”).  The
State appears to concede as much in its answering brief.

To  the  extent  our  circuit  has  recognized  exceptions  to
that  general  rule,  those  exceptions  are  limited  and  are
inapplicable  to  the  Content  Category  Reports  here.    For
example, as identified by the First Amendment and Internet
Law  Scholars  amici,  we  have  characterized  the  following
speech as commercial even if not a clear fit with the Supreme
Court’s  above  articulation:  (i)  targeted,  individualized
solicitations, see Nationwide Biweekly Admin., Inc. v. Owen,
873 F.3d. 716, 731–32 (9th Cir. 2017); contract negotiations,
see S.F. Apartment Ass’n v. San Francisco, 881 F.3d 1169,
1177–78  (9th  Cir.  2018);  and  retail  product  warnings,  see
CTIA  II,  928  F.3d  at  845.    Though  it  does  not  directly  or
exclusively  propose  a  commercial  transaction,  all  of  this
speech  communicates  the  terms  of  an  actual  or  potential
transaction.  But the Content Category Reports go further:
they express a view about those terms by conveying whether
a company believes certain categories should be defined and
proscribed.

X CORP. V. BONTA

23

Second, the Content Category Reports fail to satisfy at
least  two  of  the  three  Bolger  factors.    The  compelled
disclosures are  not  advertisements.   See  Hunt, 638 F.3d at
715.  Nor do the Content Category Reports merely disclose
existing commercial speech, so a social media company has
no economic motivation in their content.  See id.  The district
court found the same.  The State does not dispute the district
court’s finding on appeal.  Although the Bolger factors are
not  dispositive,  they  are  “important  guideposts”  to  the
analysis  and,  here,  further  support  the  conclusion  that  the
compelled speech is non-commercial.  See Ariix, LLC, 985
F.3d at 1116.

topics,

Third, while a social media platform’s existing TOS and
content moderation policies may be commercial speech, its
opinions about and reasons for those policies are different in
character and kind.  The Content Category Report provisions
would  require 9  a  social  media  company  to  convey  the
company’s policy views on intensely debated and politically
fraught
racism,
misinformation, and radicalization, and also convey how the
company  has  applied  its  policies.    The  State  suggests  that
this requirement is  subject  to lower scrutiny because “it is
only a transparency measure” about the product.  But even if
the  Content  Category  Report  provisions  concern  only
transparency, the relevant question here is: transparency into
what?    Even  a  pure  “transparency”  measure,  if  it  compels
non-commercial  speech,  is  subject  to  strict  scrutiny.    See

including

speech,

hate

9 The State relies heavily on the fact that AB 587 does not affirmatively
require  any  social  media  company  to  opine  on  these  topics,  instead
requiring the company to convey its position only to the extent such a
policy already exists.  That fact, however, is immaterial or at least non-
dispositive  as  to  the  nature  of  the  speech  being  conveyed,  which  is
fundamentally non-commercial.

24

X CORP. V. BONTA

Riley,  487  U.S.  at  796–97.    That  is  true  of  the  Content
Category  Report  provisions.    Insight  into  whether  a  social
media  company  considers,  for  example,  (1) a  post  citing
rhetoric from on-campus protests to constitute hate speech;
(2) reports  about  a  seized  laptop  to  constitute  foreign
political  interference;  or  (3) posts  about  election  fraud  to
constitute  misinformation
is  sensitive,  constitutionally
protected speech that the State could not otherwise compel a
social  media  company  to  disclose  without  satisfying  strict
scrutiny.  The mere fact that those beliefs are memorialized
in  the  company’s  content  moderation  policy  does  not,  by
itself,  convert  expression  about
into
commercial  speech.    As  X  Corp.  argues  in  its  reply  brief,
such a rule would be untenable.  It would mean that basically
any compelled disclosure by any business about its activities
would be commercial and subject to a lower tier of scrutiny,
no matter how political in nature.  Protection under the First
Amendment cannot be vitiated so easily.10

those  beliefs

The district court performed, essentially, no analysis on
this question.  In fact, the district court acknowledged that
the  Content  Category  Reports  “do  not  so  easily  fit  the
traditional definition of commercial speech” as they “are not
advertisements,  and  social  media  companies  have  no

10 For substantially the same reason, nor can the test for whether speech
is commercial or non-commercial turn on whether the speech is “directed
to potential consumers and may presumably play a role in the decision
of whether to use the platform,” as the district court seemed to suggest.
Consider, for example, a state law that compels a social media company
to  disclose  the  political  affiliations  of  its  managers.    That information
could conceivably “play a role in the [potential consumer’s] decision of
whether to use the platform”—i.e., if the consumer is concerned about
the platform’s content being politically skewed.  It could not be that such
a law compels only commercial speech subject to a lower tier of scrutiny.

X CORP. V. BONTA

25

to  provide

particular  economic  motivation
them.”
Nevertheless,  the  court  applied  Zauderer,  suggesting  the
compelled speech is commercial.  See Nat’l Wheat, 85 F.4th
at 1275 (identifying Central Hudson Gas & Electric Corp.
v.  Public  Service  Commission  of  New  York,  447  U.S.  557
(1980), and Zauderer as “two levels of scrutiny governing
compelled commercial speech” (emphasis added)); CTIA II,
928  F.3d  at  843  (endorsing  proposition  that  Zauderer  is
merely  the  “exception  to  the  general  rule  of  Central
Hudson”).    The  district  court  offered  no  reason  for  that
decision except for wanting to “follow[] the lead of the Fifth
and Eleventh Circuits.”

But  neither  the  Fifth  nor  Eleventh  Circuit  dealt  with
speech  similar  to  the  Content  Category  Reports.    Unlike
Texas  HB  20  or  Florida  SB  7072,  the  Content  Category
Report provisions compel social media companies to report
whether  and  how  they  believe  particular,  controversial
categories  of  content  should  be  defined  and  regulated  on
their platforms.  Neither the Texas nor Florida provisions at
issue in the NetChoice cases require a company to disclose
the  existence  or  substance  of  its  policies  addressing  such
categories.  See NetChoice (Tex.), 49 F.4th at 446 (requiring
platforms  to  disclose  “how  they  moderate  and  promote
content”  and  provide  “high-level  statistics”  about  their
moderation efforts without mention of controversial topics);
NetChoice (Fla.), 34 F.4th at 1206–07 (requiring platforms
to  disclose  information  about  their  content-moderation
“standards” and “rule changes” without regard to particular
content categories).  Though perhaps relevant to an analysis
of sections 22677(a)(1), (2), and (4)(B)–(E), these cases are
unhelpful on the issue of the Content Category Reports and
offer no compelling reason to apply Zauderer.

26

X CORP. V. BONTA

For  these  reasons,  we  conclude  that  the  Content
Category Report provisions compel non-commercial speech.
Because  the  provisions  are  content-based,  which  the  State
does not contest, they are subject to strict scrutiny.  See Nat’l
Inst. of Fam. & Life Advocs., 585 U.S. at 766.11

B.  The  Content  Category  Report  provisions  likely

fail strict scrutiny.

Strict scrutiny “is a demanding standard.”  Brown v. Ent.
Merchants Ass’n, 564 U.S. 786, 799 (2011).  “It is rare that
a  regulation  restricting  speech  because  of  its  content  will
ever  be  permissible.”    United  States  v.  Playboy Ent.  Grp.,
Inc., 529 U.S. 803, 818 (2000).  A state must show that the
statute “furthers a compelling governmental interest and is
narrowly tailored to that end.”  Reed, 576 U.S. at 171.  “If a
less  restrictive  alternative  would  serve  the  [g]overnment’s
purpose, the legislature must use that alternative.”  Playboy
Ent. Grp., Inc., 529 U.S. at 813.

At  minimum,  the  Content  Category  Report  provisions
likely fail under strict scrutiny because they are not narrowly
tailored.  They are more extensive than necessary to serve
the  State’s  purported  goal  of  “requiring  social  media
companies to be transparent about their content-moderation
policies and practices so that consumers can make informed
decisions about where they consume and disseminate news
and information.”  Consumers would still be meaningfully
informed  if,  for  example,  a  company  disclosed  whether  it

11 X Corp. argues that strict scrutiny applies for the following additional
reasons: because AB 587 is viewpoint discriminatory, interferes with a
social  media  company’s  constitutionally  protected  editorial  judgment,
and regulates “speech about speech.”  Several of the amici raise similar
arguments.  Because we agree that strict scrutiny applies, we need not
reach these arguments.

X CORP. V. BONTA

27

was moderating certain categories of speech without having
to define those categories in a public report.  Or, perhaps, a
company could be compelled to disclose a sample of posts
that  have  been  removed  without  requiring  the  company  to
explain why or on what grounds.12

In any event, the State does not attempt to argue that the
law survives strict scrutiny.  For the reasons above, X Corp.
has shown a likelihood of success on the merits of its First
Amendment claim as to sections 22677(a)(3), (a)(4)(A), and
(a)(5).

C.  The remaining Winter factors weigh in favor of a

preliminary injunction.

With  respect  to  the  second  factor,  a  loss  of  First
Amendment freedoms constitutes an irreparable injury.  See
Fellowship  of  Christian  Athletes,  82  F.4th  at  694  (“It  is
axiomatic that ‘[t]he loss of First Amendment freedoms, for
even  minimal  periods  of  time,  unquestionably  constitutes
irreparable  injury.’”  (citation  omitted)).    Because  X  Corp.
has a colorable First Amendment claim, it has demonstrated
that it likely will suffer irreparable harm.  See Am. Bev. Ass’n
v.  San  Francisco,  916  F.3d  749,  758  (9th  Cir.  2019)  (en
banc).

The  third  and  fourth  factors—balance  of  equities  and
public  interest—also  favor  X  Corp.    “[I]t  is  always  in  the
public  interest  to  prevent  the  violation  of  a  party’s
constitutional rights.”  Fellowship of Christian Athletes, 82
F.4th  at  695  (citation  omitted).    When  a  party  “‘raise[s]
serious First Amendment questions,’ that alone ‘compels a

12 We do not opine on whether such laws would survive constitutional
scrutiny.  They are offered only to illustrate that the Content Category
Report provisions are not narrowly tailored to the State’s interest.

28

X CORP. V. BONTA

finding  that  the  balance  of  hardships  tips  sharply  in  [its]
favor.’” Id. (second alteration in original) (quoting Am. Bev.
Ass’n, 916 F.3d at 758).  The government reasonably has an
interest in transparency by social media platforms.  But even
“undeniably  admirable  goals”  “must  yield”  when  they
“collide with the . . . Constitution.”  Id.

Because X Corp. has shown a likelihood of success on
the merits of its First Amendment claim, and the remaining
Winter factors weigh in favor of an injunction, we reverse
the district court’s decision denying a preliminary injunction
as to AB 587’s Content Category Report provisions.

II.  We remand to the district court to determine whether
the  Content  Category  Report  provisions  are  likely
severable from the remainder of AB 587.

“Severability is . . . a matter of state law.”  Sam Francis
Found.  v.  Christies,  Inc.,  784  F.3d  1320,  1325  (9th  Cir.
2015)  (en  banc)  (alteration  in  original)  (quoting  Leavitt  v.
Jane  L.,  518  U.S.  137,  139  (1996)  (per  curiam)).    “In
California, the presence of a severability clause in a statutory
scheme that contains an invalid provision ‘normally calls for
sustaining the valid part of the enactment.’”  Garcia v. City
of Los Angeles, 11 F.4th 1113, 1120 (9th Cir. 2021) (quoting
Cal. Redevelopment Ass’n v. Matosantos, 267 P.3d 580, 607
(Cal. 2011)).

The parties did not brief severability on appeal, and the
severability arguments below appear to have been cursory.
During oral argument, counsel for the State suggested that,
were  we  to  find  that  any  part  of  the  statute  should  be
enjoined, the issue of severability should be remanded.  We
agree and leave it to the district court to determine in the first
instance  whether  the  likely  unconstitutional  provisions  of
AB  587,  sections  22677(a)(3),  (a)(4)(A),  and  (a)(5),  are

X CORP. V. BONTA

29

severable from its remainder.  See generally Detrich v. Ryan,
740 F.3d 1237, 1248–49 (9th Cir. 2013) (en banc) (observing
that it is “standard practice . . . to remand to the district court
for  a  decision  in  the  first  instance  without  requiring  any
special  justification  for  so  doing”),  overruled  on  other
grounds by Shinn v. Ramirez, 596 U.S. 366 (2022).

CONCLUSION

For  the  foregoing  reasons,  we  REVERSE  the  district
court’s  denial  of  a  preliminary  injunction  as  to  California
Business  and  Professions  Code  sections  22677(a)(3),
(a)(4)(A), and (a)(5).  We remand with instructions to enter
a preliminary injunction consistent with this opinion and to
determine whether these provisions are severable from the
remainder  of  AB  587  and,  if  so,  which,  if  any,  of  the
remaining challenged provisions should also be enjoined.