FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

X CORP.,

Plaintiff - Appellant,

v.

ROBERT BONTA, in his official 

capacity as Attorney General of 

California,

Defendant - Appellee.

No. 24-271

D.C. No.

2:23-cv-01939-

WBS-AC

OPINION

Appeal from the United States District Court

for the Eastern District of California

William B. Shubb, District Judge, Presiding

Argued and Submitted July 17, 2024

San Francisco, California

Filed September 4, 2024

Before: MILAN D. SMITH, JR., MARK J. BENNETT, 

and ANTHONY D. JOHNSTONE, Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.
2 X CORP. V. BONTA

SUMMARY*

First Amendment / Social Media Platforms

The panel reversed the district court’s order denying 

social media platform owner X Corp.’s motion for a 

preliminary injunction to enjoin enforcement of California 

Assembly Bill AB 587 (AB 587), which requires large social 

media companies to post their terms of service and to submit 

reports to the Attorney General of California (the State) 

about their terms of service and their content-moderation 

policies and practices. 

The Content Category Report provisions of AB 587 

require social media companies to submit to the State a 

semiannual report detailing whether and how they define six 

categories of content: hate speech or racism, extremism or 

radicalization, disinformation or misinformation, 

harassment, foreign political interference, and controlled 

substance distribution.

The panel held that X Corp. was likely to succeed on the 

merits of its claim that the Content Category Report 

provisions facially violate the First Amendment. A facial 

challenge is permissible because the Content Category 

Report provisions raise the same First Amendment issues for 

every social media company. The Content Category Report 

provisions compel non-commercial speech, and are subject 

to strict scrutiny because the provisions are contentbased. The Content Category Report provisions likely fail 

strict scrutiny because they are not narrowly tailored to serve 

* This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
X CORP. V. BONTA 3

the State’s purported goal of requiring social media 

companies to be transparent about their policies and 

practices. 

The panel held that the remaining factors weighed in 

favor of a preliminary injunction.

Accordingly, the panel reversed the district court’s 

denial of a preliminary injunction, and remanded with 

instructions to enter a preliminary injunction consistent with 

the opinion and to determine whether the Content Category 

Report provisions are severable from the remainder of AB 

587 and, if so, which, if any, of the remaining challenged 

provisions should also be enjoined.

COUNSEL

Joel L. Kurtzberg (argued), Floyd Abrams, Jason D. 

Rozbruch, and Lisa J. Cole, Cahill Gordon & Reindel LLP, 

New York, New York; William R. Warne and Meghan M. 

Baker, Downey Brand LLP, Sacramento, California; for 

Plaintiff-Appellant.

Gabrielle D. Boutin (argued), Deputy Attorney General; 

Anthony R. Hakl, Supervising Deputy Attorney General; 

Thomas S. Patterson, Senior Deputy Attorney General; Rob 

Bonta, Attorney General of California; Office of the 

California Attorney General, Sacramento, California; for 

Defendant-Appellee.

Robert Corn-Revere and Joshua A. House, Foundation for 

Individual Rights and Expression, Washington, D.C., for 

Amicus Curiae Foundation for Individual Rights and 

Expression.
4 X CORP. V. BONTA

Trenton H. Norris, Mark W. Brennan, J. Ryan Thompson, 

Sophie Baum, and Alexander Tablan, Hogan Lovells LLP, 

San Francisco, California; Cory L. Andrews and John M. 

Masslon II, Washington Legal Foundation, Washington, 

D.C.; for Amicus Curiae Washington Legal Foundation.

Gene C. Schaerr, Schaerr Jaffe LLP, Washington, D.C., for 

Amici Curiae Professor Eugene Volokh and Protect the First 

Foundation.

Megan L. Brown, Jeremy J. Broggi, and Boyd Garriott, 

Wiley Rein LLP, Washington, D.C.; Jonathan D. Urick and 

Maria C. Monaghan, United States Chamber Litigation 

Center; Washington, D.C.; for Amicus Curiae United States 

of America Chamber of Commerce.

Bruce D. Brown, Katie Townsend, Gabe Rottman, Grayson 

Clary and Emily Hockett, Reporters Committee for Freedom 

of the Press, Washington, D.C.; for Amicus Curiae Reporters 

Committee for Freedom of the Press.

David A. Greene and Aaron Mackey, Electronic Frontier 

Foundation, San Francisco, California, for Amicus Curiae 

Electronic Frontier Foundation.

Jacob M. Karr, Technology Law and Policy Clinic at New 

York University, New York, New York; G.S. Hans, Cornell 

Law School, Ithaca, New York; for Amici Curiae First 

Amendment and Internet Law Scholars.

Michelle Quist and Lauren D. Wigginton, Buchalter APC, 

Salt Lake City, Utah; Jon M. Greenbaum, Edward G. Caspar, 

and Marc P. Epstein, Lawyers' Committee for Civil Rights 

Under Law, Washington, D.C.; for Amicus Curiae Lawyers' 

Committee for Civil Rights Under Law.
X CORP. V. BONTA 5

Viviana M. Hanley and Nathanial I. Levy, Deputy Attorneys 

General; Michael L. Zuckerman, Deputy Solicitor General; 

Jeremy Feigenbaum, Solicitor General; Metthew J. Platkin, 

Attorney General of New Jersey; Office of the New Jersey 

Attorney General, Trenton, New Jersey; Kristin K. Mayes, 

Attorney General of Arizona, Office of the Arizona Attorney 

General, Phoenix, Arizona; Philip J. Weiser, Attorney 

General of Colorado, Office of the Colorado Attorney 

General, Denver, Colorado; William Tong, Attorney 

General of Connecticut, Office of the Connecticut Attorney 

General, Hartford, Connecticut; Kathleen Jennings, 

Attorney General of Delaware, Office of the Delaware 

Attorney General, Wilmington, Delaware; Brian L. 

Schwalb, Attorney General of the District of Columbia, 

Office of the District of Columbia Attorney General, 

Washington, D.C.; Kwame Raoul, Attorney General of 

Illinois, Office of the Illinois Attorney General, Chicago, 

Illinois; Aaron M. Frey, Attorney General of Maine, Office 

of the Maine Attorney General, Augusta, Maine; Anthony 

G. Brown, Attorney General of Maryland, Office of the 

Maryland Attorney General, Baltimore, Maryland; Andrea 

J. Campbell, Attorney General of Massachusetts, Office of 

the Massachusetts Attorney General, Boston, 

Massachusetts; Dana Nessel, Attorney General of Michigan, 

Office of the Michigan Attorney General, Lansing, 

Michigan; Keith Ellison, Attorney General of Minnesota, 

Office of the Minnesota Attorney General, St. Paul, 

Minnesota; Aaron D. Ford, Attorney General of Nevada, 

Office of the Nevada Attorney General, Carson City, 

Nevada; Letitia James, Attorney General of New York, 

Office of the New York Attorney General, New York, New 

York; Ellen F. Rosenblum, Attorney General of Oregon, 

Office of the Oregon Attorney General, Salem, Oregon; 
6 X CORP. V. BONTA

Michelle A. Henry, Attorney General of Pennsylvania, 

Office of Harrisburg, Pennsylvania; Charity R. Clark, 

Attorney General of Vermont, Office of the Vermont 

Attorney General, Montpelier, Vermont; Robert M. 

Ferguson, Attorney General of Washington, Office of the 

Washington Attorney General, Olympia, Washington; for 

Amici Curiae States of New Jersey, Arizona, Colorado, 

Connecticut, Delaware, The District of Columbia, Illinois, 

Maine, Maryland, Massachusetts, Michigan, Minnesota, 

Nevada, New York, Oregon, Pennsylvania, Vermont, and 

Washington.

Jason S. Harrow and Charles Gerstein, Gerstein Harrow 

LLP, Los Angeles, California, for Amicus Curiae Institute 

for Strategic Dialogue.

Megan Iorio and Schuyler Standley, Electronic Privacy 

Information Center, Washington, D.C., for Amicus Curiae 

Electronic Privacy Information Center.

Kristen G. Simplicio and Cort T. Carlson, Tycko & Zavareei 

LLP, Washington, D.C.; John Yang, Niyati Shah, and Noah 

Baron, Asian Americans Advancing Justice, Washington, 

D.C.; for Amicus Curiae Asian Americans Advancing 

Justice.
X CORP. V. BONTA 7

OPINION

M. SMITH, Circuit Judge:

The California State Legislature enacted Assembly Bill 

587 (AB 587) in September 2022. Cal. Bus. & Prof. Code 

§§ 22675–81. The law requires large social media 

companies to, inter alia, post their terms of service and to 

submit, on a semiannual basis, reports to the Attorney 

General of California (the State) about their terms of service 

and content-moderation policies and practices. X Corp., the 

owner of the large social media platform X (formerly known 

as Twitter), moved for a preliminary injunction to enjoin 

enforcement of AB 587 on free speech and federal 

preemption grounds. The district court denied X Corp.’s 

motion, finding that X Corp. failed to establish a likelihood 

of success on the merits. X Corp. appeals. For the reasons 

below, we reverse and remand to the district court for further 

proceedings consistent with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

AB 587 has three primary elements: (1) a requirement 

that social media companies1 publicly post their terms of 

service, including processes for flagging content and 

potential actions that may be taken with respect to flagged 

content (Terms of Service (TOS) Posting), see Cal. Bus. & 

Prof. Code § 22676, (2) a requirement that social media 

1 AB 587 does not apply to social media companies with gross annual 

revenues of less than $100 million, Cal. Bus. & Prof. Code § 22680, nor 

to “an internet-based service or application for which interactions 

between users are limited to direct messages, commercial transactions, 

consumer reviews of products, sellers, services, events, or places, or any 

combination thereof,” id. § 22681. 
8 X CORP. V. BONTA

companies submit to the State a semiannual report detailing 

their TOS and content-moderation practices including, if at 

all, how the terms of service define and address (a) hate 

speech or racism; (b) extremism or radicalization; 

(c) disinformation or misinformation; (d) harassment; and 

(e) foreign political interference, as well as statistics on 

content that was flagged by the social media company as 

belonging to any of the categories (TOS Report), see id. 

§ 22677, 2 and (3) a penalty provision, whereby the social 

media company may be sued in court for, inter alia, 

materially omitting or misrepresenting required information 

and may be liable to pay up to $15,000 per violation per day, 

see id. § 22678.3

On September 8, 2023, X Corp. filed a complaint against 

the State seeking declaratory relief and injunctive relief 

barring the law’s enforcement. The complaint alleges three 

causes of action challenging the TOS Posting, TOS Report, 

and penalty provision of AB 587 as: (1) a violation of the 

free speech clauses of the U.S. and California Constitutions; 

(2) a violation of the Dormant Commerce Clause; and 

(3) federally preempted pursuant to the Communications 

Decency Act, 47 U.S.C. § 230(c). X Corp. filed a motion for 

preliminary injunction based on its free speech and 

2 AB 587 was subsequently amended to add to this list “[c]ontrolled 

substance distribution.” 2023 Cal. Legis. Serv. 7680 (West).

3 In assessing the amount of any penalty, a court is to consider whether 

the social media company has made a reasonable, good faith attempt to 

comply with the provisions of the statute. Cal. Bus. & Prof. Code 

§ 22678(a)(3).
X CORP. V. BONTA 9

preemption claims, seeking to enjoin the State from 

enforcing the challenged provisions of AB 587.4

On December 28, 2023, the district court denied X 

Corp.’s motion. The court began its analysis with X Corp.’s 

First Amendment claim.5 The court held that X Corp. was 

unlikely to prevail because the TOS Posting and TOS Report 

requirements appeared constitutionally permissible in light 

of Zauderer v. Office of Disciplinary Counsel of Supreme 

Court of Ohio, 471 U.S. 626 (1985), the Supreme Court’s 

test for compelled commercial speech. See X Corp. v. Bonta, 

No. 23-cv-01939, 2023 WL 8948286, at *1–2 (E.D. Cal. 

Dec. 28, 2023).

The court’s analysis of the TOS Report requirement

focused primarily on the provisions requiring that social 

media companies report whether and how they define and 

address certain enumerated content categories. Id. at *2.

The court acknowledged that such reports do “not so easily 

fit the traditional definition of commercial speech” because 

they “are not advertisements” and because “social media 

companies have no particular economic motivation to 

provide them.” Id. However, the court applied Zauderer to 

those provisions nevertheless so as to “follow[] the lead of 

the Fifth and Eleventh Circuits.” Id. (citing NetChoice, LLC 

v. Paxton, 49 F.4th 439, 485 (5th Cir. 2022), rev’d on other 

groundssub nom. Moody v. NetChoice, LLC, 144 S. Ct. 2383 

4 X Corp. did not seek a preliminary injunction based upon the Dormant 

Commerce Clause.

5 The district court did not analyze X Corp.’s free speech claim under 

Article I, Section 2, of the California Constitution, nor do the parties 

meaningfully address this claim on appeal. Because we hold that X 

Corp. is likely to succeed on its First Amendment claim, we do not reach

X Corp.’s free speech claim pursuant to the California Constitution.
10 X CORP. V. BONTA

(2024) (“NetChoice (Tex.)”), and NetChoice, LLC v. Att’y 

Gen., Fla., 34 F.4th 1196, 1230 (11th Cir. 2022), rev’d on 

other grounds sub nom. Moody, 144 S. Ct. 2383 (“NetChoice 

(Fla.)”)). The court then concluded that the TOS Report 

requirement satisfies Zauderer. Id. The court reasoned that 

the provisions require speech that is “purely factual” and 

“uncontroversial” because they “merely require[] social 

media companies to identify their existing content 

moderation policies, if any, related to the specified 

categories” and the “mere fact that the reports may be ‘tied 

in some way to a controversial issue’ does not make the 

reports themselves controversial.” Id. (quoting CTIA - The 

Wireless Ass’n v. City of Berkeley, 928 F.3d 832, 845 (9th 

Cir. 2019) (“CTIA II”)). The court rejected X Corp.’s 

argument that the TOS Report requirement is “unduly 

burdensome,” explaining that “AB 587 does not require that 

a social media company adopt any of the specified 

categories” of speech, and that in any event “Zauderer is 

concerned not merely with logistical or economic burdens, 

but burdens on speech.” Id. It further held that the TOS 

Report requirement is “reasonably related to a substantial 

government interest in requiring social media companies to 

be transparent about their content moderation policies and 

practices so that consumers can make informed decisions 

about where they consume and disseminate news and 

information.” Id.

The district court also determined that X Corp. had failed 

to show a likelihood of success on its claim that AB 587 is 

preempted by 47 U.S.C. § 230(c). Id. at *3. The court

observed that the purpose of section 230(c) “is to provide 

‘protection for “Good Samaritan” blocking and screening of 

offensive material’” so that a website may “self-regulate 

offensive third party content without fear of liability.” Id.
X CORP. V. BONTA 11

(quoting Doe v. Internet Brands, Inc., 824 F.3d 846, 851–52 

(9th Cir. 2016)). The court concluded that AB 587 is not 

preempted because, under its plain language, it “does not 

provide for any potential liability stemming from a 

company’s content moderation activities per se,” only for 

failing to make AB 587’s required disclosures. Id.

On January 12, 2024, X Corp. timely filed notice of its 

appeal. The provision of AB 587 most relevant in this appeal 

is section 22677(a), which reads in its entirety:

(a) On a semiannual basis in accordance with 

subdivision (b), a social media company shall 

submit to the Attorney General a terms of 

service report. The terms of service report 

shall include, for each social media platform 

owned or operated by the company, all of the 

following:

(1) The current version of the terms of service 

of the social media platform.

(2) If a social media company has filed its 

first report, a complete and detailed 

description of any changes to the terms of 

service since the previous report.

(3) A statement of whether the current 

version of the terms of service defines each 

of the following categories of content, and, if 

so, the definitions of those categories, 

including any subcategories:

(A) Hate speech or racism.

(B) Extremism or radicalization.

(C) Disinformation or misinformation.
12 X CORP. V. BONTA

(D) Harassment.

(E) Foreign political interference.

(F) Controlled substance distribution.6

(4) A detailed description of content 

moderation practices used by the social 

media company for that platform, including, 

but not limited to, all of the following:

(A) Any existing policies intended to 

address the categories of content 

described in paragraph (3).

(B) How automated content moderation 

systems enforce terms of service of the 

social media platform and when these 

systems involve human review.

(C) How the social media company 

responds to user reports of violations of 

the terms of service.

(D) How the social media company 

would remove individual pieces of

content, users, or groups that violate the 

terms of service, or take broader action 

against individual users or against groups 

of users that violate the terms of service.

(E) The languages in which the social 

media platform does not make terms of 

service available, but does offer product 

6 As noted above, section 22677(a)(3)(F) was added subsequent to X 

Corp. filing its lawsuit in the district court.
X CORP. V. BONTA 13

features, including, but not limited to, 

menus and prompts.

(5) (A) Information on content that was 

flagged by the social media company as 

content belonging to any of the categories 

described in paragraph (3), including all of 

the following:

(i) The total number of flagged items of 

content.

(ii) The total number of actioned items of 

content.

(iii) The total number of actioned items of 

content that resulted in action taken by 

the social media company against the 

user or group of users responsible for the 

content.

(iv) The total number of actioned items of 

content that were removed, demonetized, 

or deprioritized by the social media 

company.

(v) The number of times actioned items 

of content were viewed by users.

(vi) The number of times actioned items 

of content were shared, and the number of 

users that viewed the content before it 

was actioned.

(vii) The number of times users appealed 

social media company actions taken on 

that platform and the number of reversals 

of social media company actions on 
14 X CORP. V. BONTA

appeal disaggregated by each type of 

action.

(B) All information required by subparagraph 

(A) shall be disaggregated into the following 

categories:

(i) The category of content, including any 

relevant categories described in 

paragraph (3).

(ii) The type of content, including, but not 

limited to, posts, comments, messages, 

profiles of users, or groups of users.

(iii) The type of media of the content, 

including, but not limited to, text, images, 

and videos.

(iv) How the content was flagged, 

including, but not limited to, flagged by 

company employees or contractors, 

flagged by artificial intelligence software, 

flagged by community moderators, 

flagged by civil society partners, and 

flagged by users.

(v) How the content was actioned, 

including, but not limited to, actioned by 

company employees or contractors, 

actioned by artificial intelligence 

software, actioned by community 

moderators, actioned by civil society 

partners, and actioned by users.
X CORP. V. BONTA 15

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction pursuant to 28 U.S.C. § 1292(a)(1) 

to review the denial of a preliminary injunction. Creech v. 

Idaho Comm’n of Pardons & Parole, 94 F.4th 851, 854 (9th 

Cir. 2024). We review the denial of a preliminary injunction 

for abuse of discretion, but we review de novo the 

underlying issues of law. Cal. Chamber of Com. v. Council 

for Educ. & Rsch. on Toxics, 29 F.4th 468, 475 (9th Cir. 

2022). 

“The appropriate legal standard to analyze a preliminary 

injunction motion requires a district court to determine 

whether a movant has established that (1) [it] is likely to 

succeed on the merits of [its] claim, (2) [it] is likely to suffer 

irreparable harm absent the preliminary injunction, (3) the 

balance of equities tips in [its] favor, and (4) a preliminary 

injunction is in the public interest.” Baird v. Bonta, 81 F.4th 

1036, 1040 (9th Cir. 2023); see Winter v. Nat. Res. Def. 

Council, Inc., 555 U.S. 7, 20 (2008). Because “the party 

opposing injunctive relief is a government entity” here, the 

third and fourth factors “merge.” Fellowship of Christian 

Athletes v. San Jose Unified Sch. Dist. Bd. of Educ., 82 F.4th 

664, 695 (9th Cir. 2023) (en banc) (quoting Nken v. Holder, 

556 U.S. 418, 435 (2009)).

ANALYSIS

On appeal, X Corp. challenges the district court’s ruling 

on the TOS Report requirement and penalty provision as 

applied to the TOS Report requirement. X Corp. does not 

appeal the district court’s denial of a preliminary injunction 

as to the TOS Posting requirement, Cal. Bus. & Prof. Code 

§ 22676.
16 X CORP. V. BONTA

X Corp. argues that the district court erred by finding that 

X Corp. did not establish a likelihood of success on the 

merits because (1) the TOS Report requirement is 

compelled, non-commercial speech subject to strict scrutiny, 

not the lower tier of scrutiny in Zauderer, (2) regardless, the 

TOS Report requirement fails under any level of scrutiny, 

and (3) section 230’s broad immunity precludes liability 

under AB 587.

X Corp. seeks to reverse the district court’s ruling as to 

the entirety of the TOS Report requirement. But the thrust 

of the appeal concerns section 22677(a)(3), which requires 

that social media companies report whether and how they 

define six categories of content, and sections 22677(a)(4)(A) 

and (a)(5), which directly incorporate section 22677(a)(3). 

For ease of reference, we refer to these sections as the 

Content Category Report provisions.

For the reasons below, we hold that the Content Category 

Report provisions likely compel non-commercial speech and 

are subject to strict scrutiny, under which they do not 

survive. We reverse the district court on that basis. Because 

we reverse on free speech grounds, we need not reach X 

Corp.’s section 230 theory. We remand to the district court 

to determine in the first instance whether the Content 

Category Report provisions are severable from the 

remainder of AB 587, and if so, which, if any, of the 

remaining challenged provisions should also be subject to 

the preliminary injunction.7

7 We do not decide whether sections 22677(a)(1), (2), and (4)(B)–(E)—

which require that social media companies disclose the text of their TOS 

and describe their enforcement mechanisms, without mention of specific 
X CORP. V. BONTA 17

I. X Corp. is likely to succeed in showing that the 

Content Category Report provisions facially violate 

the First Amendment.

“For a host of good reasons, courts usually handle 

constitutional claims case by case, not en masse.” Moody, 

144 S. Ct. at 2397. The Supreme Court “has therefore made 

facial challenges hard to win.” Id. In a typical facial 

challenge, a plaintiff cannot succeed “unless he 

‘establish[es] that no set of circumstances exists under which 

the [law] would be valid,’ or he shows that the law lacks a 

‘plainly legitimate sweep.’” Id. (alterations in original) (first 

quoting United States v. Salerno, 481 U.S. 739, 745 (1987); 

then quoting Wash. State Grange v. Wash. State Republican 

Party, 552 U.S. 442, 449 (2008)).

However, in First Amendment cases, the Supreme Court 

“has lowered that very high bar.” Id. “To provide breathing 

room for free expression,” the Supreme Court has 

“substituted a less demanding though still rigorous 

standard.” Id. (cleaned up) (quoting United States v. 

Hansen, 599 U.S. 762, 769 (2023)); see also Tucson v. City 

of Seattle, 91 F.4th 1318, 1327 (9th Cir. 2024). “[I]f the 

law’s unconstitutional applications substantially outweigh 

its constitutional ones,” then a court may sustain a facial 

challenge to the law and strike it down. Moody, 144 S. Ct. 

at 2397. As Moody clarified, a First Amendment facial 

challenge has two parts: first, the courts must “assess the 

state laws’ scope”; and second, the courts must “decide 

content categories—are facially constitutional. Neither party—either 

below or on appeal—briefed what should happen to the remainder of 

section 22677 if the Content Category Report provisions were found to 

be likely unconstitutional.
18 X CORP. V. BONTA

which of the laws’ applications violate the First Amendment, 

and . . . measure them against the rest.” Id. at 2398.

“[N]o one has paid much attention to” the requirements 

for a facial challenge so far in this case. Id. at 2397.

Nevertheless, we conclude that a facial challenge is 

permissible here. That is because all aspects of the Content 

Category Report, in every application to a covered social 

media company, raise the same First Amendment issues. As 

explained in further detail below, every Content Category 

Report must detail the company’s policies and actions 

concerning certain state-specified categories of content

(even if only to detail the company’s decision not to define 

the enumerated categories of section 22677(a)(3)). In effect, 

the Content Category Report provisions compel every

covered social media company to reveal its policy opinion 

about contentious issues, such as what constitutes hate 

speech or misinformation and whether to moderate such

expression.

8 

8 X Corp. cites legislative history and statements from the California 

State Attorney General in describing the indirect chilling effects AB 587 

may have by generating public controversy about the actions of social 

media companies and thereby pressuring them to change their content 

moderation policies. No matter how a social media company chooses to 

moderate such content, the company will face backlash from its users 

and the public. That is true even if the company decides not to define 

the enumerated categories, because they will draw criticism for undermoderating their community. While we account for these effects in our 

analysis, whether State officials intended these effects plays no role in 

our analysis of the merits of this facial challenge. See B & L Prods., Inc. 

v. Newsom, 104 F.4th 108, 116 (9th Cir. 2024) (citing United States v. 

O’Brien, 391 U.S. 367, 383 n.30 (1968)) (rejecting “the idea that 

‘legislative motive’” of indirectly chilling speech “‘is a proper basis for 

declaring a statute unconstitutional’”).
X CORP. V. BONTA 19

Thus, the Content Category Report provisions raise the 

same First Amendment issues for every covered social 

media company. That is true from the face of the law; we 

need not “speculate about ‘hypothetical’ or ‘imaginary’ 

cases.” See Wash. State Grange, 552 U.S. at 450. We 

therefore proceed to consider whether the Content Category 

Report provisions are likely to survive X Corp.’s First 

Amendment facial challenge.

A. The Content Category Report provisions compel 

non-commercial speech and are subject to strict 

scrutiny.

One of the First Amendment’s core purposes is “to 

preserve an uninhibited marketplace of ideas in which truth 

will ultimately prevail.” McCullen v. Coakley, 573 U.S. 464, 

476 (2014) (quoting FCC v. League of Women Voters of 

Cal., 468 U.S. 364, 377 (1984)). In evaluating whether a 

regulation violates the First Amendment, courts “distinguish 

between content-based and content-neutral regulations of 

speech.” Vidal v. Elster, 602 U.S. 286, 292 (2024) (internal 

quotation marks omitted) (quoting Nat’l Inst. of Fam. & Life 

Advocs. v. Becerra, 585 U.S. 755, 766 (2018)). A contentbased regulation “target[s] speech based on its 

communicative content,” restricting discussion of a subject 

matter or topic. Reed v. Town of Gilbert, 576 U.S. 155, 163 

(2015). “As a general matter,” a content-based regulation is 

“presumptively unconstitutional and may be justified only if 

the government proves that [it is] narrowly tailored to serve 

compelling state interests.” Nat’l Inst. of Fam. & Life 

Advocs., 585 U.S. at 766 (quoting Reed, 576 U.S. at 163). 

When a state “compel[s] individuals to speak a particular 

message,” the state “alter[s] the content of their speech,” and 

engages in content-based regulation. Id. (cleaned up)

(quoting Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487 
20 X CORP. V. BONTA

U.S. 781, 795 (1988)). The First Amendment’s guarantee of 

freedom of speech makes no distinction of “constitutional 

significance” “between compelled speech and compelled 

silence.” Riley, 487 U.S. at 796–97.

In general, laws regulating commercial speech are 

subject to a lesser standard of scrutiny. See Bolger v. Youngs 

Drug Prods. Corp., 463 U.S. 60, 64–65 (1983) (discussing 

recognition and evolution of commercial speech doctrine). 

This holds true for both corporations and individuals alike. 

See Pac. Gas & Elec. Co. v. Pub. Utils. Comm’n of Cal., 475 

U.S. 1, 16 (1986). Commercial speech is “usually defined 

as speech that does no more than propose a commercial 

transaction.” United States v. United Foods, Inc., 533 U.S. 

405, 409 (2001). “Courts view this definition as just a 

starting point, however, and instead try to give effect to a 

‘common-sense distinction’ between commercial speech 

and other varieties of speech.” Ariix, LLC v. NutriSearch 

Corp., 985 F.3d 1107, 1115 (9th Cir. 2021) (cleaned up)

(quoting Jordan v. Jewel Food Stores, Inc., 743 F.3d 509, 

516–17 (7th Cir. 2014)). Indeed, the “commercial speech 

analysis is fact-driven, due to the inherent difficulty of 

drawing bright lines that will clearly cabin commercial 

speech in a distinct category.” First Resort, Inc. v. Herrera, 

860 F.3d 1263, 1272 (9th Cir. 2017) (internal quotation 

marks omitted) (quoting Greater Balt. Ctr. for Pregnancy 

Concerns, Inc. v. Mayor & City Council of Balt., 721 F.3d 

264, 284 (4th Cir. 2013)).

Because of the difficulty of drawing clear lines between 

commercial and non-commercial speech, the Supreme Court 

in Bolger outlined three factors to consider. 463 U.S. at 64–

67. “Where the facts present a close question, ‘strong 

support’ that the speech should be characterized as 

commercial speech is found where [1] the speech is an 
X CORP. V. BONTA 21

advertisement, [2] the speech refers to a particular product, 

and [3] the speaker has an economic motivation.” Hunt v. 

City of L.A., 638 F.3d 703, 715 (9th Cir. 2011) (citing 

Bolger, 463 U.S. at 66–67). These so-called Bolger factors 

are important guideposts, but they are not necessarily 

dispositive. See Bolger, 463 U.S. at 67 n.14 (“Nor do we 

mean to suggest that each of the characteristics present in 

this case must necessarily be present in order for speech to 

be commercial.”); Dex Media W., Inc. v. City of Seattle, 696 

F.3d 952, 958 (9th Cir. 2012).

Commercial speech is generally subject to intermediate 

scrutiny. Nat’l Ass’n of Wheat Growers v. Bonta, 85 F.4th 

1263, 1266 (9th Cir. 2023). However, an exception applies 

to compelled commercial speech that is “purely factual and 

uncontroversial.” Id.; see Pac. Coast Horseshoeing Sch., 

Inc. v. Kirchmeyer, 961 F.3d 1062, 1074 (9th Cir. 2020) 

(citing Zauderer as a variation in the treatment of speech 

“within the class of commercial speech”). “In that scenario, 

the government need only demonstrate the compelled speech 

survives a lesser form of scrutiny akin to a rational basis 

test.” Nat’l Wheat, 85 F.4th at 1266.

State legislatures do not have “freewheeling authority to 

declare new categories of speech outside the scope of the 

First Amendment.” United States v. Stevens, 559 U.S. 460, 

472, (2010). Thus, “without persuasive evidence that a 

novel restriction on content is part of a long (if heretofore 

unrecognized) tradition of proscription, a legislature may not 

revise the ‘judgment [of] the American people,’ embodied in

the First Amendment, ‘that the benefits of its restrictions on 

the Government outweigh the costs.’” Brown v. Entm’t 

Merchs. Ass’n, 564 U.S. 786, 792 (2011) (alteration in 

original) (quoting Stevens, 559 U.S. at 470).
22 X CORP. V. BONTA

Here, the Content Category Reports are not commercial 

speech. They require a company to recast its contentmoderation practices in language prescribed by the State, 

implicitly opining on whether and how certain controversial 

categories of content should be moderated. As a result, few

indicia of commercial speech are present in the Content 

Category Reports. 

First, the Content Category Reports do not satisfy the

“usual[] defin[ition]” of commercial speech—i.e., “speech 

that does no more than propose a commercial transaction.” 

See United Foods, Inc., 533 U.S. at 409; see also IMDb.com 

Inc. v. Becerra, 962 F.3d 1111, 1122 (2020) (“Because 

IMDb’s public profiles do not ‘propose a commercial 

transaction,’ we need not reach the Bolger factors.”). The 

State appears to concede as much in its answering brief.

To the extent our circuit has recognized exceptions to 

that general rule, those exceptions are limited and are 

inapplicable to the Content Category Reports here. For 

example, as identified by the First Amendment and Internet 

Law Scholars amici, we have characterized the following 

speech as commercial even if not a clear fit with the Supreme 

Court’s above articulation: (i) targeted, individualized 

solicitations, see Nationwide Biweekly Admin., Inc. v. Owen,

873 F.3d. 716, 731–32 (9th Cir. 2017); contract negotiations, 

see S.F. Apartment Ass’n v. San Francisco, 881 F.3d 1169,

1177–78 (9th Cir. 2018); and retail product warnings, see 

CTIA II, 928 F.3d at 845. Though it does not directly or 

exclusively propose a commercial transaction, all of this 

speech communicates the terms of an actual or potential

transaction. But the Content Category Reports go further: 

they express a view about those terms by conveying whether 

a company believes certain categories should be defined and 

proscribed.
X CORP. V. BONTA 23

Second, the Content Category Reports fail to satisfy at 

least two of the three Bolger factors. The compelled 

disclosures are not advertisements. See Hunt, 638 F.3d at 

715. Nor do the Content Category Reports merely disclose

existing commercial speech, so a social media company has 

no economic motivation in their content. See id. The district 

court found the same. The State does not dispute the district 

court’s finding on appeal. Although the Bolger factors are 

not dispositive, they are “important guideposts” to the 

analysis and, here, further support the conclusion that the 

compelled speech is non-commercial. See Ariix, LLC, 985 

F.3d at 1116.

Third, while a social media platform’s existing TOS and 

content moderation policies may be commercial speech, its 

opinions about and reasons for those policies are different in 

character and kind. The Content Category Report provisions

would require 9 a social media company to convey the

company’s policy views on intensely debated and politically 

fraught topics, including hate speech, racism, 

misinformation, and radicalization, and also convey how the 

company has applied its policies. The State suggests that 

this requirement is subject to lower scrutiny because “it is 

only a transparency measure” about the product. But even if 

the Content Category Report provisions concern only 

transparency, the relevant question here is: transparency into 

what? Even a pure “transparency” measure, if it compels 

non-commercial speech, is subject to strict scrutiny. See 

9 The State relies heavily on the fact that AB 587 does not affirmatively 

require any social media company to opine on these topics, instead 

requiring the company to convey its position only to the extent such a 

policy already exists. That fact, however, is immaterial or at least nondispositive as to the nature of the speech being conveyed, which is 

fundamentally non-commercial.
24 X CORP. V. BONTA

Riley, 487 U.S. at 796–97. That is true of the Content 

Category Report provisions. Insight into whether a social 

media company considers, for example, (1) a post citing 

rhetoric from on-campus protests to constitute hate speech; 

(2) reports about a seized laptop to constitute foreign 

political interference; or (3) posts about election fraud to 

constitute misinformation is sensitive, constitutionally 

protected speech that the State could not otherwise compel a 

social media company to disclose without satisfying strict 

scrutiny. The mere fact that those beliefs are memorialized 

in the company’s content moderation policy does not, by 

itself, convert expression about those beliefs into 

commercial speech. As X Corp. argues in its reply brief, 

such a rule would be untenable. It would mean that basically

any compelled disclosure by any business about its activities 

would be commercial and subject to a lower tier of scrutiny, 

no matter how political in nature. Protection under the First 

Amendment cannot be vitiated so easily.10

The district court performed, essentially, no analysis on 

this question. In fact, the district court acknowledged that 

the Content Category Reports “do not so easily fit the 

traditional definition of commercial speech” as they “are not 

advertisements, and social media companies have no 

10 For substantially the same reason, nor can the test for whether speech 

is commercial or non-commercial turn on whether the speech is “directed 

to potential consumers and may presumably play a role in the decision 

of whether to use the platform,” as the district court seemed to suggest. 

Consider, for example, a state law that compels a social media company 

to disclose the political affiliations of its managers. That information 

could conceivably “play a role in the [potential consumer’s] decision of 

whether to use the platform”—i.e., if the consumer is concerned about 

the platform’s content being politically skewed. It could not be that such 

a law compels only commercial speech subject to a lower tier of scrutiny.
X CORP. V. BONTA 25

particular economic motivation to provide them.” 

Nevertheless, the court applied Zauderer, suggesting the 

compelled speech is commercial. See Nat’l Wheat, 85 F.4th 

at 1275 (identifying Central Hudson Gas & Electric Corp. 

v. Public Service Commission of New York, 447 U.S. 557 

(1980), and Zauderer as “two levels of scrutiny governing 

compelled commercial speech” (emphasis added)); CTIA II, 

928 F.3d at 843 (endorsing proposition that Zauderer is 

merely the “exception to the general rule of Central 

Hudson”). The district court offered no reason for that 

decision except for wanting to “follow[] the lead of the Fifth 

and Eleventh Circuits.”

But neither the Fifth nor Eleventh Circuit dealt with 

speech similar to the Content Category Reports. Unlike

Texas HB 20 or Florida SB 7072, the Content Category 

Report provisions compel social media companies to report

whether and how they believe particular, controversial

categories of content should be defined and regulated on 

their platforms. Neither the Texas nor Florida provisions at 

issue in the NetChoice cases require a company to disclose 

the existence or substance of its policies addressing such 

categories. See NetChoice (Tex.), 49 F.4th at 446 (requiring 

platforms to disclose “how they moderate and promote 

content” and provide “high-level statistics” about their 

moderation efforts without mention of controversial topics); 

NetChoice (Fla.), 34 F.4th at 1206–07 (requiring platforms 

to disclose information about their content-moderation 

“standards” and “rule changes” without regard to particular 

content categories). Though perhaps relevant to an analysis 

of sections 22677(a)(1), (2), and (4)(B)–(E), these cases are 

unhelpful on the issue of the Content Category Reports and 

offer no compelling reason to apply Zauderer.
26 X CORP. V. BONTA

For these reasons, we conclude that the Content 

Category Report provisions compel non-commercial speech. 

Because the provisions are content-based, which the State

does not contest, they are subject to strict scrutiny. See Nat’l 

Inst. of Fam. & Life Advocs., 585 U.S. at 766.

11

B. The Content Category Report provisions likely 

fail strict scrutiny.

Strict scrutiny “is a demanding standard.” Brown v. Ent. 

Merchants Ass’n, 564 U.S. 786, 799 (2011). “It is rare that 

a regulation restricting speech because of its content will 

ever be permissible.” United States v. Playboy Ent. Grp., 

Inc., 529 U.S. 803, 818 (2000). A state must show that the 

statute “furthers a compelling governmental interest and is 

narrowly tailored to that end.” Reed, 576 U.S. at 171. “If a 

less restrictive alternative would serve the [g]overnment’s 

purpose, the legislature must use that alternative.” Playboy 

Ent. Grp., Inc., 529 U.S. at 813. 

At minimum, the Content Category Report provisions

likely fail under strict scrutiny because they are not narrowly 

tailored. They are more extensive than necessary to serve 

the State’s purported goal of “requiring social media 

companies to be transparent about their content-moderation 

policies and practices so that consumers can make informed 

decisions about where they consume and disseminate news 

and information.” Consumers would still be meaningfully 

informed if, for example, a company disclosed whether it 

11 X Corp. argues that strict scrutiny applies for the following additional 

reasons: because AB 587 is viewpoint discriminatory, interferes with a 

social media company’s constitutionally protected editorial judgment, 

and regulates “speech about speech.” Several of the amici raise similar 

arguments. Because we agree that strict scrutiny applies, we need not

reach these arguments.
X CORP. V. BONTA 27

was moderating certain categories of speech without having 

to define those categories in a public report. Or, perhaps, a 

company could be compelled to disclose a sample of posts 

that have been removed without requiring the company to 

explain why or on what grounds.12

In any event, the State does not attempt to argue that the 

law survives strict scrutiny. For the reasons above, X Corp. 

has shown a likelihood of success on the merits of its First 

Amendment claim as to sections 22677(a)(3), (a)(4)(A), and 

(a)(5).

C. The remaining Winter factors weigh in favor of a 

preliminary injunction.

With respect to the second factor, a loss of First 

Amendment freedoms constitutes an irreparable injury. See 

Fellowship of Christian Athletes, 82 F.4th at 694 (“It is 

axiomatic that ‘[t]he loss of First Amendment freedoms, for 

even minimal periods of time, unquestionably constitutes 

irreparable injury.’” (citation omitted)). Because X Corp. 

has a colorable First Amendment claim, it has demonstrated 

that it likely will suffer irreparable harm. See Am. Bev. Ass’n

v. San Francisco, 916 F.3d 749, 758 (9th Cir. 2019) (en 

banc).

The third and fourth factors—balance of equities and 

public interest—also favor X Corp. “[I]t is always in the 

public interest to prevent the violation of a party’s 

constitutional rights.” Fellowship of Christian Athletes, 82 

F.4th at 695 (citation omitted). When a party “‘raise[s] 

serious First Amendment questions,’ that alone ‘compels a 

12 We do not opine on whether such laws would survive constitutional 

scrutiny. They are offered only to illustrate that the Content Category 

Report provisions are not narrowly tailored to the State’s interest.
28 X CORP. V. BONTA

finding that the balance of hardships tips sharply in [its] 

favor.’” Id. (second alteration in original) (quoting Am. Bev. 

Ass’n, 916 F.3d at 758). The government reasonably has an 

interest in transparency by social media platforms. But even 

“undeniably admirable goals” “must yield” when they 

“collide with the . . . Constitution.” Id.

Because X Corp. has shown a likelihood of success on 

the merits of its First Amendment claim, and the remaining 

Winter factors weigh in favor of an injunction, we reverse 

the district court’s decision denying a preliminary injunction 

as to AB 587’s Content Category Report provisions.

II. We remand to the district court to determine whether 

the Content Category Report provisions are likely 

severable from the remainder of AB 587.

“Severability is . . . a matter of state law.” Sam Francis 

Found. v. Christies, Inc., 784 F.3d 1320, 1325 (9th Cir. 

2015) (en banc) (alteration in original) (quoting Leavitt v. 

Jane L., 518 U.S. 137, 139 (1996) (per curiam)). “In 

California, the presence of a severability clause in a statutory 

scheme that contains an invalid provision ‘normally calls for 

sustaining the valid part of the enactment.’” Garcia v. City 

of Los Angeles, 11 F.4th 1113, 1120 (9th Cir. 2021) (quoting 

Cal. Redevelopment Ass’n v. Matosantos, 267 P.3d 580, 607 

(Cal. 2011)).

The parties did not brief severability on appeal, and the 

severability arguments below appear to have been cursory. 

During oral argument, counsel for the State suggested that, 

were we to find that any part of the statute should be 

enjoined, the issue of severability should be remanded. We 

agree and leave it to the district court to determine in the first 

instance whether the likely unconstitutional provisions of 

AB 587, sections 22677(a)(3), (a)(4)(A), and (a)(5), are 
X CORP. V. BONTA 29

severable from its remainder. See generally Detrich v. Ryan, 

740 F.3d 1237, 1248–49 (9th Cir. 2013) (en banc) (observing 

that it is “standard practice . . . to remand to the district court 

for a decision in the first instance without requiring any 

special justification for so doing”), overruled on other 

grounds by Shinn v. Ramirez, 596 U.S. 366 (2022).

CONCLUSION

For the foregoing reasons, we REVERSE the district 

court’s denial of a preliminary injunction as to California

Business and Professions Code sections 22677(a)(3), 

(a)(4)(A), and (a)(5). We remand with instructions to enter 

a preliminary injunction consistent with this opinion and to 

determine whether these provisions are severable from the 

remainder of AB 587 and, if so, which, if any, of the 

remaining challenged provisions should also be enjoined.