California Is Advancing a Bill To Punish Social Media Companies for Not Suppressing Speech

Senate Bill 771 would fine platforms up to $1 million if their algorithms relay hate speech to users.

The California Legislature is advancing Senate Bill 771, which would have a chilling effect on free speech on social media. Under the bill, which sits in the state Assembly after being passed by the Senate in May, large social media companies will be subject to legal challenges and fines if their algorithms "relay content to users" that violates the state's civil rights protections, such as hate speech. Platforms that knowingly violate the law could face fines up to $1 million. The bill would also implement a separate "civil penalty" fine of up to $500,000 for reckless violations.  

The Legislature says the bill is needed because of a rise in documented hate crimes. It cites a report by the Human Rights Campaign that found "anti-LGBTQ+ disinformation and harmful rhetoric" increased by 400 percent following the passage of Florida's "Don't Say Gay" bill in 2022, as well as a report by the Los Angeles County Commission on Human Relations that found that "hate crimes involving anti-immigrant slurs increased by 31 percent" in FY 2024, the highest number since tracking began in 2007.

The bill additionally cites the Anti-Defamation League's 2024 Audit of Antisemitic Incidents, which found an 893 percent increase in antisemitic incidents over the previous 10 years, and a 2023 study by nonprofit Global Witness, which found that paid advertisements promoting violence toward women were placed and distributed across social media platforms.

The bill says it isn't intended "to regulate speech or viewpoint but to clarify that social media platforms, like all other businesses, may not knowingly use their systems to promote, facilitate, or contribute to conduct that violates state civil rights laws." In reality, the bill would punish social media companies for user speech protected under the First Amendment, Shoshana Weissmann, director of digital media at the R Street Institute, explains to Reason. 

"This bill includes algorithms where new posts are shown first or posts shown are only from the people one follows, without further customization," she says. "Under this bill, any form of showing content to users would make the companies liable for user speech. This obviously makes no sense." 

It also does not explain how social media companies can knowingly promote hate. "Under the law, 'knowingly' seems to include anytime the platform uses an algorithm," she adds. 

By only penalizing companies with $100 million or more in annual gross profits, the bill may, ironically, promote more extreme speech online. Weissmann points to smaller social media platforms such as 4chan, which has a reputation for hosting more extreme content than larger companies but would be exempt from enforcement under the bill. 

Enforcement questions aside, the bill is sure to face scrutiny under Section 230 of the Communications Decency Act, which largely protects platforms from being held liable for user speech.

"There have been many bills that attempt to get around First Amendment and Section 230 complications with compelling platforms to curtail user speech by targeting algorithms. There are many issues with doing so—including the fact that algorithms are also speech," Weissmann says.

Despite the bill saying it is not intended "to regulate speech or viewpoint," S.B. 771 will likely chill free speech by incentivizing platforms to increase moderation of their users to avoid fines and legal liability. While reducing hateful speech online may be a worthwhile goal, punishing social media companies for users' speech is the wrong way to do it.