Full disclosure: Is Brand X (Twitter) right to sue California?

Elon Musk has made major, often controversial changes to the social media site in the year since he purchased Twitter — © AFP Stefani Reynolds

The company Brand X (formerly Twitter) is suing California for its law requiring disclosure with respect to how Brand X and other “social” media companies do content moderation. The California law, Assembly Bill 587, requires social media companies to disclose their policies, including what content users are allowed to post on their platforms and how it responds when they violate the platform’s rules, according to the LA Times.

What does this mean for the business community? Looking at the ramifications for Digital Journal is Jeffrey Wernick, strategic advisor and investor at BitChute, a speech video-streaming platform.

Wernick  says that the takeaway is maybe instead of suing California, X’s Terms of Service should be revised to the First Amendment and support the repeal of Section 230. And that by embracing a full and complete withdrawal of the State from Social Media, may in fact make social media actually social.

Here v opines: “Normally I would be sympathetic to arguments for free speech protection and against the extensive intrusion into business practices. But Brand X and “social” media companies benefit from a privileged immunity granted by the State and so it does not seem unreasonable that the State has a compelling interest in making sure that the immunity privilege is not being abused.”

Furthermore, Wernick  observes: “It is understandable that Brand X wants a blanket immunity and an impunity with respect to that immunity. After all, Adam Kovacevich, the CEO of the tech policy coalition Chamber of Progress has recently indicated that the playbook Brand X uses to deal with conspiracists is a “bad idea.” Whoever these conspiracists are. Obviously it should remain a trade secret how Brand X deals with conspiracists.”

Wernick  adds: “Is the comparative advantage of Brand X its ability to identify conspiracists? Would disclosure of how Brand X identifies conspiracists enable conspiracists to hide their identity?”

Looping this back to the issue of the U.S. legal framework, Wernick expresses the view: “I also find it ironic that those who love to defend the Bill of Rights frequently only cite the amendments which support their arguments. What about the amendment which promises due process? Oops. There is no real conviction regarding the Bill of Rights, just the convenient application of those amendments which are useful and beneficial under a set of particular circumstances.”

This leads to the following criticism: “It seems to me that Brand X and other “social” media companies would, if interested in being truly social, be transparent about their decisions regarding content on their platforms. Then justice would more likely be served. Maybe that would have an adverse impact on ad revenues. The Justice vs Ad Revenue trade-off. And maybe users would not be too happy if they really knew how their content was algorithmically manipulated and reach-impaired? How does that “…Not Reach” actually work?”

Completing his critique, Wernick states: “And sorry folks, when the government grants a business an extremely valuable immunity, a special privilege, a privileged exemption, one highly valued by “social” media, then Brand X, by embracing it, has already welcomed government intrusion. Regulated businesses have all grown accustomed to being inspected by the government. Providing data to the government. Making extensive disclosures to the government.”

This leads to Wernick’s assessment: “This is the price paid for requesting subsidies, immunities, preferences, privileges, exemptions and all other forms of government benefits. Elon, Brand X, maybe, just maybe the special immunity does not come with impunity. And the disclosure obligation might be a reasonable response to by the State to make sure that Brand X is not violating the intentions of Section 230. That the residents of California are being treated without bias with respect to the content moderation decisions X makes and for which it is granted an exemption from liability.” Wernick sums all of this up with: “Maybe instead of suing California, change X’s Terms of Service to the First Amendment and support the repeal of 230. Embrace a full and complete withdrawal of the State from Social Media. Make Social Media actually social.”