Silencing Californians? The Truth About SB 771
Free speech has been at the forefront of the political conversation over the past few weeks. It was sparked by the assassination of Charlie Kirk, as many pointed out he was killed simply for exercising his first amendment right. It was then exacerbated by the suspension of Jimmy Kimmel’s late-night show based on his comments about the assassination. But the conversation has been ongoing since even before these events, and our Governor has been an active participant in calling the Trump Administration one of censorship and tyranny. On X he claimed that “Donald Trump is dismantling the First Amendment in real time.”[1]
But what is even more important than what Gavin Newsom says about topics like these, is what he DOES about them – and how do we know that? Well, based on the laws and policies that he advocates for and puts in place in his state! So, today, we need to look at a new bill that has been presented to our Governor – a bill that speaks directly to freedom of speech and that reveals the true position that the state of California takes on the subject.
Basics of SB 771
Senate Bill 771 was introduced back in April by Senator Henry Stern, who represents parts of Los Angeles and Ventura County. It passed through the Senate and the Assembly earlier this month, eventually landing on the Governor’s desk on September 22.[2]
The purpose of the bill is to hold large social media platforms – defined as those with $100 million or more in annual revenue – liable if their algorithms relay or promote content that violates California’s civil rights statutes.[3] In theory, it is supposed to create civil penalties in instances when a platform’s recommendations are found to have aided, abetted, or conspired in civil rights violations. Examples of violations are threats, intimidation, or harassment based on protected characteristics – like gender identity or race.
An important distinction to make right at the outset of understanding this bill is that SB 771 is not addressing the actual civil rights violations themselves – meaning this bill isn’t enacting penalties for when people post threats or harassment – but it’s going a step further to hold the actual platforms, the social media companies themselves, liable for the content being posted or promoted based on their algorithms.
What exactly was the catalyst for this? Lawmakers involved in the bill cite rising hate crimes and harassment, such as a:
31% increase in anti-immigrant hate crimes,[4] a
400% rise in what they call “anti-LGBTQ+ disinformation/harmful rhetoric” online,[5] and a
62% increase in anti-Islamic incidents.[6]
How they are defining the incidents that they are classifying as hate crimes toward these groups is unclear, as it is largely described as “harmful rhetoric,” but it is based on these incidents that California lawmakers are saying this is a pervasive issue that they want to address legislatively.
Let’s dig a little further into the bill to really understand what is going on here and how lawmakers are supposedly addressing this issue.
A social media platform can be liable in two cases: first, if its algorithms relay content to users that results in a violation of civil rights laws; or second, if it aids, abets, or conspires in such a violation. Essentially, liability isn’t just for hosting speech on the platform, it’s tied to the algorithmic promotion of unlawful content.
What are the penalties for these companies? For knowing or intentional violations, the fine is up to $1,000,000 per violation. For reckless violations, so those that weren’t intentional, the fine is half of that, up to $500,000. If the victim of the civil rights violation is a minor, then penalties can be doubled.[7]
What lawmakers who support this bill are arguing is that social media companies are deemed to have “actual knowledge” of their algorithms, meaning they can’t plead ignorance of how their systems distribute content. They further argue then that running an algorithm that boosts content counts as an independent act, separate from the person who is posting the content. This is the key to the entire bill, because this argument is what separates speech by users from amplification by platforms.
What this means in practice is that users can still post hateful or even borderline unlawful content, but if a platform’s algorithm pushes that content into feeds or recommendations and it leads to a civil rights violation, the platform itself could be fined even though it didn’t create the content or perform the violation.
(Un)Constitutionality of SB 771
The most pressing question that we must ask when looking at this bill is: is this legal? Under the first amendment, is this constitutional?
SB 771 is already facing a mountain of legal hurdles and eager challengers, and that’s because at its core this is a freedom of speech issue. The basic principle this bill is posing is that social media platforms should suppress speech that is deemed to be hateful or in violation by the standards of the California government. Lawmakers wouldn’t put it that way – they would say platforms just shouldn’t promote speech that may lead to these civil rights violations – but oh my goodness, there are just so many issues with that!
First, to not promote or relay speech is to suppress it. There is no in between. To suppress speech you don’t like, regardless of why you don’t like it, is to infringe on our freedom of speech, one of the most deeply held values in our country. Even is speech is egregious, even if I viscerally disagree with what is being said, our constitution guarantees you the right, as an American citizen, to say it.
Now, you may be thinking, but there is some speech, like direct threats or incitement to violence, that is illegal, that you can be legally punished for saying, so shouldn’t social media platforms be responsible for that? Which leads to the next problem of what is the standard we are using for harmful speech and who gets to decide it? Because yes, legally we have already set the precent that direct threats and harassment are not considered protected under the free speech umbrella – and social media companies already have policies and procedures in place to analyze speech for unprotected characteristics – but if you are going to put a new law in place that enacts $1 million dollar fines, then you’d better be crystal clear on what qualifies as unprotected speech. This bill doesn’t do that. This bill cites the Human Rights Campaign’s definition of a rise in “harmful rhetoric” toward LGTBQ individuals. But what are they defining as harmful? Is it truly only speech that is inciting people to violence or calling on direct threats to certain people groups – or is it speech that disagrees with a certain lifestyle?
The reality is that we saw major speech suppression under the Biden administration. Google just admitted this month that the Biden Administration pressured them censor political speech that didn’t violate YouTube’s policies but that they didn’t like.[8] We saw YouTube and other social media companies deplatform and demonetize and suppress users who said that men are not women, and that marriage is between one woman and one man. And in our culture today we have already seen a huge shift toward the belief that speech is violence. That to deny someone’s worldview as valid is to deny their very existence and to wish harm upon them – even if you never said that. So, what is California going to classify as threatening or harmful language? How do we know that viewpoints that are not hateful, but are simply unpopular in our deeply liberal state, are going to be equally protected under the law?
This is a major red flag for free speech rights in our state. We cannot pass legislation that gives lawmakers, politicians, and law enforcement the power to define what is “harmful” to say or not to say – and we certainly can’t punish the very platforms that are supposed to be the places for people to express their views, opinions, and values. Here’s the thing – if there is any confusion or lack of clarity at all, then companies are going to want to err on the side of caution. By that I mean that if companies know that they are at risk of being fined $1 million dollars for certain political posts that could be interpreted by our state as hateful, then they are going to take the cautious route of suppressing them to protect their financial and reputational interests. But that is to incentivize the censorship of free speech, and we do not do that in America!
And there’s actually legal precedent for this. Take for example the 1972 case Grayned v. City of Rockford. The City of Rockford Illinois put an anti-picketing ordinance in place after demonstrators protested for the rights of Black students on the sidewalk outside West High School. The Supreme Court struck down the city’s anti-picketing ordinance because it was written so broadly and vaguely that people couldn’t tell what was actually prohibited.[9] That kind of law risks punishing protected speech along with harmful conduct, which is exactly the case for SB 771 in California. The First Amendment requires clear, narrow rules when regulating expression, and laws that don’t do that have been ruled by the Court to violate free speech.
Beyond just being vague, there are a whole host of other legal precents that challenge this bill as well – the most important of which is Section 230 of the Communications Decency Act. This says that online platforms for content posted by third parties are not held liable as a publisher or speaker of that user-generated content.[10] In other words, if someone posts something illegal or harmful online, the platform (Facebook, YouTube, Reddit, etc.) isn’t treated as if it said it. So, if I post real threats on my Instagram, then I can be held liable, but Instagram cannot be. The reason Section 230 is important is because of exactly what I was saying before – without it, companies would likely over-censor or shut down open posting entirely, because they’d fear being sued for anything their users said.
There is a ton of case law regarding Section 230, including specific to algorithms used by these media companies. In the 2019 court case Force v. Facebook, the 2nd Circuit ruled that Section 230 shields platforms from liability even when algorithms recommend user content, since algorithms function as neutral tools processing user inputs rather than making editorial judgments. Families of Hamas victims argued Facebook’s “newsfeed” and “suggested friends” features connected terrorists, but the court held those outputs still count as traditional editorial functions protected by Section 230.[11] This bill would change that by making platforms liable for algorithmically recommended speech. Because federal law – like section 230 – preempts state law, if SB 771 is passed by Governor Newsom, there are serious legal questions about it.
A Real Problem and a Real Solution
But moving beyond the question of legality, there is another pressing question with this topic, and that is: is hateful rhetoric really an issue to be addressed by social media companies, and is legislation targeting social media companies really the most effective solution to the problem?
To both questions I would answer, pretty strongly, no. Civil rights laws already prohibit true threats, harassment, or incitement, we don’t need an additional to law force tech companies to start enforcing the law on behalf of others. Expanding that duty to tech companies deputizes them as “speech police,” with million-dollar fines hanging over their heads. That creates a dangerous precedent where unelected corporations decide what Californians can or cannot say – something that’s fundamentally at odds with democratic free expression.
And really legislation like this doesn’t even hit at the root problem that’s underlying the uptick in “harmful” speech that California officials are claiming to see. That’s because we need to clearly define harmful rhetoric, and then accurately diagnose what is causing it.
Speech that disagrees with your point of view or even the mainstream, widely accepted point of view, is not intrinsically hateful or legally harmful. Saying that illegal immigration is bad for safety, for the protection of American citizens, and for our country is not the same as saying you hate all immigrants, or even that you hate illegal immigrants. It is just to say that you don’t think the policy of the United States should be to widespread open the borders and let anyone in without vetting them. That is completely protected under the First Amendment. The fundamental problem lies in the narrative in society today that that speech actually would be harmful or violent, and so it should be moderated. We should not be teaching our future generations that viewpoints you disagree with are “harmful.”
So, the solution then is to not just further outlaw more and more speech that you like less and less. The solution is to empower people – young people especially – to have open debate, to respect one another in dialoguing about differences in opinion, and to emphasize that if you really don’t like what someone is saying, to winsomely work to change their mind. The solution is to cultivate community in our society today in such a way that we see each other as full human beings – not just as political beliefs. The only true solution is the love that is possible only through the gospel – through a reformed heart and mind that are so captivated by Christ that they are determined to love the people around them, and not to resort to violence or hatred. And that is precisely why SB 771 should concern all of us. Because instead of trusting people to debate, persuade, and grow, California is trying to hand that responsibility to the government. That’s not freedom, it’s control.
So, is California really committed to free speech? Or is it only committed to speech it likes? I guess we’ll find out when Gavin Newsom decides whose voices are allowed in the digital public square.
References:
[1] Newsom, Gavin (@GavinNewsom). "Pay attention. Donald Trump is dismantling the First Amendment in real time." X, September 20, 2025, 08:43 a.m. https://x.com/GavinNewsom/status/1969427103037997148.
[2] CalMatters. “SB 771: Personal Rights: Liability: Social Media Platforms. | Digital Democracy,” n.d. https://calmatters.digitaldemocracy.org/bills/ca_202520260sb771.
[3] Ibid.
[4] County of Los Angeles, “LA County Releases Annual Report on Hate Crimes: Highest Total of Hate Crimes Ever Reported – COUNTY OF LOS ANGELES,” COUNTY OF LOS ANGELES, March 25, 2025, https://lacounty.gov/2024/12/11/highest-total-of-hate-crimes-ever-reported/.
[5] HRC. “NEW REPORT: Anti-LGBTQ+ Grooming Narrative Surged More Than 400% On…,” August 10, 2022. https://www.hrc.org/press-releases/new-report-anti-lgbtq-grooming-narrative-surged-more-than-400-on-social-media-following-floridas-dont-say-gay-or-trans-law-as-social-platforms-enabled-extremist-politicians-and-their-allies-to-peddle-inflamatory-discriminatory-rhetoric#:~:text=NEW%20REPORT:%20Anti%2DLGBTQ+%20Grooming%20Narrative%20Surged%20More%20Than%20400,Center%20for%20Countering%20Digital%20Hate.
[6] “2023 Hate Crime Statistics,” August 11, 2025. https://www.justice.gov/hatecrimes/2023-hate-crime-statistics.
[7] “SB 771: Personal Rights: Liability: Social Media Platforms. | Digital Democracy,” n.d.
[8] House Judiciary Committee Republicans. “Google Admits Censorship Under Biden; Promises to End Bans of YouTube Accounts of Thousands of Americans Censored for Political Speech | House Judiciary Committee Republicans,” September 23, 2025. https://judiciary.house.gov/media/press-releases/google-admits-censorship-under-biden-promises-end-bans-youtube-accounts.
[9] Cornell Law School, “Richard GRAYNED, Appellant, V. CITY OF ROCKFORD.,” LII / Legal Information Institute, n.d., https://www.law.cornell.edu/supremecourt/text/408/104.
[10] Congress.gov. “Section 230: A Brief Overview,” n.d. https://www.congress.gov/crs-product/IF12584#:~:text=Section%20230%20of%20the%20Communications,providers%20or%20users%20developed%20themselves.
[11] Duffield, Will. “Force V. Facebook Revisited.” Cato Institute, December 9, 2021. https://www.cato.org/blog/force-v-facebook-revisited.
