California Governor Gavin Newsom, often floated as a potential 2028 presidential candidate, recently vetoed SB-771 — a bill that would have made social media platforms legally liable for “recklessly” allowing so-called hate speech to appear on their sites.
As Charles Sauer writes, the measure “would hold social media companies liable for violating California’s civil rights law if they ‘recklessly aided and abetted’ the posting of hate speech.” That change from “knowingly” to “recklessly” was no small edit — it was a deliberate attempt to make it easier for the state to go after online platforms under the guise of enforcing civil rights law.
“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.”
Sauer explains that SB-771 would have directly conflicted with Section 230 of the Communications Decency Act, which protects online platforms from liability for user-generated content as long as they do not exercise editorial control. He notes that the Supreme Court’s 2023 ruling in Twitter, Inc. v. Taamneh confirmed that companies can only be held responsible for aiding and abetting wrongdoing if they engage in “conscious, voluntary, and culpable participation” — not merely by hosting speech others find offensive.
Fortunately, Newsom vetoed the bill. Unfortunately, as Sauer points out, the governor’s veto message left the door open for similar censorship efforts in the future:
Newsom said he shares the goal of ensuring that “our nation-leading civil rights laws apply equally both online and offline,” adding only that the bill was “premature” and that California might revisit it once it’s clear whether current laws are “sufficient to address violations perpetrated through algorithms.”
That’s a worrying signal for anyone who values the First Amendment. As Sauer notes, this new “hate speech” push isn’t confined to the left — even some conservatives have begun echoing the language of censorship.
“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.’”
The Supreme Court has already made the principle clear. In Matal v. Tam (2017), Justice Alito wrote that “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.’”
As Sauer concludes:
“If that’s not enough to convince politicians to stand down, perhaps they should remember what Charlie Kirk said: ‘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.’”
Read the full article by Charles Sauer on RealClearMarkets.
