California Governor (and potential 2028 presidential candidate) Gavin Newsom recently vetoed a bill, SB-771, which would hold social media companies liable for violating California’s civil rights law if they “recklessly aided and abetted” the posting of hate speech. “Recklessly” replaces the California civil rights law’s current requirement that someone “knowingly” aided and abetted a violation of the law. The reason for this change is it is almost impossible to prove that a social media company knowingly aided and abetted a civil rights violation. The change is also made in the hope that prosecuting social media companies who allow hate speech on their platforms will help the law avoid First Amendment challenges.
However, simply saying that a hate speech law will only be enforced in cases of a civil rights violation does not make the ban on hate speech any less unconstitutional. Holding tech companies liable for “recklessly” allowing hate speech on their platforms also conflicts with Section 230 of the 1996 Communications Decency Act. Section 230 protects operators of online platforms from liability for their users’ posts as long as the company does not exercise editorial control over user-generated content on their site. In the 2023 case of Twitter, Inc v. Taamneh, the Supreme Court ruled that a platform could only be held liable for “aiding and abetting a criminal or torturous act” if the company engaged in “conscious, voluntary, and culpable participation in another's wrongdoing.” Thus, a company would have to actively promote posts containing hate speech by, for example, manipulating the algorithms to make sure as many users of their site as possible saw the posts.
Despite these objections, SB-771 passed the California legislature. Fortunately, Governor Newsom vetoed the bill. But, rather unfortunately, Governor Newsom’s veto message said that he shares the “goal of ensuring that our nation-leading civil rights laws apply equally both online and offline.” However, he was concerned “that this bill is premature. Our first step should be to determine if, and to what extent, existing civil rights laws are sufficient to address violations perpetrated through algorithms. To the extent our laws prove inadequate, they should be bolstered at that time.”
In other words, he would be willing to violate the First Amendment (and federal law, which trumps state law) as soon as he regards existing laws are inadequate. Misguided support for violating the First Amendment in order to crack down on hate speech has become an issue dividing a right wing that, as recently as two years ago, was united against censoring speech by labeling it as “hateful.” For example shortly after Charle Kirk’s murder, Attorney General Pam Bondi stated, “there’s free speech and then there’s hate speech.” She continued, “we will absolutely target you, go after you, if you are targeting anyone with hate speech, anything—and that’s across the aisle.”
After a backlash from many leading conservatives, including Speaker of the House Mike Johnson and one of her own deputy Attorneys General, Bondi sought to “clarify” her position stating that “hate speech that crosses the line into threats of violence is NOT protected by the First Amendment.” Bondi’s clarification may seem reasonable in that it only criminalizes speech intended to lead to violence. However, many advocates of hate speech laws argue that those who indulge in speech that inspires acts of violence should be held liable for the consequences of those acts, even if the speaker did not intend to encourage violence.
In 2017 the Supreme Court ruled in Matal v. Tam that a federal law forbidding the issuance of trademarks that “disparage” individuals violated the First Amendment. Writing for the majority, Justice Alito stated, “speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’”
If that’s not enough to convince Pam Bondi, she should consider the comments of Charlie Kirk: “hate speech does not exist legally in America. There's ugly speech. There's gross speech. There's evil speech. And ALL of it is protected by the First Amendment. Keep America free."
