Some states are seeking to regulate online speech by requiring platforms to remove content that public officials deem addictive, immoral, or deceptive. In response to concerns that AI-generated “deepfakes” could influence elections, the California legislature enacted Assembly Bill 2655. The statute is novel and sweeping. It establishes a complex notice-and-takedown and content-labeling system for many social media and technology companies. If a platform fails to act on user reports of “materially deceptive” content—a contested and elusive concept—in the weeks leading up to an election, political candidates and state or local prosecutors may sue to compel takedown or labeling, backed by the threat of contempt sanctions.

The Babylon Bee—a parody news site—X Corp., and others sued California officials and challenged the law in federal court. The district court sided with the plaintiffs, holding that AB 2655 is preempted under Section 230 of the Communications Decency Act.

Now Cato has filed an amicus brief in support of X Corp. and the content creators to the U.S. Court of Appeals for the Ninth Circuit.

Our brief explains why the California notice-and-takedown law conflicts with Section 230, which prevents states from treating social media platforms as “publishers” or “speakers” of users’ content.

AB 2655 requires online platforms—speakers protected by the First Amendment—to review and remove users’ speech. The statute’s report-and-takedown system does not operate automatically—and platforms cannot simply accept every report at face value. They must review the content and decide whether it falls within the statute’s definition. In short, AB 2655 requires platforms to curate content. A platform that refuses to comply on First Amendment grounds faces an injunction and, if noncompliance continues, contempt sanctions or damages—precisely a type of publisher liability that Section 230 forbids.

The State attempts to avoid this conclusion by asserting that AB 2655 regulates social media companies only as “distributors,” not as “publishers.” But distributor liability is simply a fault-based subset of publisher liability, and courts have long recognized that the distinction between publishers and distributors is often indistinct. Even if large online platforms were treated as distributors under AB 2655, the statute would still be preempted by Section 230.

Finally, strong policy considerations reinforce this conclusion. Federal law governing the Internet tends to create a uniform regulatory environment for an inherently interstate medium. Allowing AB 2655 to take effect would invite other states to enact their own notice-and-takedown laws. Platforms would face a patchwork of inconsistent rules governing speech. The resulting compliance burdens would be enormous, and the predictable response would be hasty removal of lawful speech—the precise effects Congress tried to prevent by enacting Section 230.

California’s law chills online speech and violates federal law and policy. The Ninth Circuit should affirm the district court’s holding that AB 2655 is preempted.