California lawmakers threaten free speech regarding immigration groups

A new bill under consideration in California is facing criticism for censoring speech about immigration. Elon Musk has claimed the bill would “make investigating fraud illegal.” One opponent has dubbed it the “Stop Nick Shirley Act,” named after the YouTuber known for filming alleged fraud at child care centers in Somali immigrant communities in Minnesota. But its sponsor says the bill simply protects immigrant organizations from threats of violence. 

So which is it?

The bill, AB 2624, does two things. First, it allows people who’ve faced threats or violence for providing or receiving immigration services to join California’s “Safe at Home” program, which allows people to keep their residential address out of state records. Second — and this is the part we’re focusing on — it limits what regular people are allowed to post online about immigrants and the people who help them.

Ban on threats

The bill’s sponsor, Assemblymember Mia Bonta, has said her bill has no First Amendment problems and is just about protecting people against threats, violence, and harassment. She’s right that a lot of the bill is actually aimed at speech that’s not protected by the First Amendment: threats and incitement. But some of these sections would benefit from small changes. 

For example, one section prohibiting threats seems to ignore Counterman v. Colorado, where the Supreme Court held the government can’t punish someone for making threats unless they knew or at least “consciously disregard[ed] a substantial risk” that the speech “would be viewed as threatening violence.”

Another section criminalizing incitement against immigrants and service providers fails to fully reflect the Supreme Court’s standard for incitement, which requires that the statement in question be intended to cause an imminent illegal action and be likely to do so.

The bill should be amended to explicitly and exactly track the relevant legal standards, but these sections target speech that is not protected by the First Amendment — and, therefore, is within the state’s power to restrict.

Ban on posting ‘personal information’

The most concerning part of the bill is Section 6218.19.(b)(1), which says people who receive or provide immigration services and are protected by the bill can ban nearly anyone from posting their personal information on the internet — with “personal information” defined as anything that “relates to” them, including simply their name.

In order to face such a ban, the person making the post doesn’t have to be threatening or harassing anyone, and the post doesn’t even have to relate to immigration. The person being posted about simply has to tell them in writing that they fear for their safety “based on” illegal threats or incitement against them online. Once the poster receives the letter, they are prohibited from posting about the person who sent it for four years. If they do, the immigrant or service provider can sue to get a court order requiring removal of the information. If they win, the poster must remove the content and pay court costs and attorney’s fees, which could easily be thousands of dollars.

This section isn’t limited to content that falls outside the First Amendment. Far from it. It covers any information that “relates to” the immigrant or service provider. That means the provision could facilitate censorship of all kinds of speech the Constitution protects. And there is a significant potential pool of people who could seek protection under the bill: over a quarter of California’s population, 10 million people, are immigrants, and likely millions more people have provided them services: lawyers, nonprofit employees, social workers, doctors and other health care providers, etc. A legislative analysis from the Public Safety committee says a person has to have joined the “Safe at Home” program to avail themselves of this section, but the bill text is not entirely clear on that point. It says the person must be “subject to the protection of [the bill],” and most of the bill protects people from threats regardless of whether they’ve actually joined the program. But either way, the First Amendment problems are unchanged.

A few hypotheticals illustrate how the bill’s censorship could work:

• The managing partner of an immigration law firm who receives a threat could argue online comments about the firm “relates to” him or her, and send letters forcing removal of negative reviews of the firm.
• If an elected lawmaker or other high-ranking government official volunteers at an immigration organization and receives an online threat (as such figures often do), they could claim the right to censor people who go online to criticize their government service.
• Someone who gets help from an immigration lawyer and faces an online threat could demand that people take down unrelated social media gossip about them or group pictures on Instagram that include their face.

How does this affect journalism?

According to AB 2624’s critics, this section would censor journalism about immigration services fraud. But Bonta has said, “There are no provisions related to journalism or fraud.” 

Neither claim is entirely correct. The bill includes a carve-out for journalists, but it could still be used to censor newsworthy information about immigration organizations.

The exception for journalists says the ban on posting “personal information” doesn’t apply to anyone covered under the state’s press shield law. That includes reporters or anyone else “connected with” a newspaper or other “periodical publication,” or a radio or TV station. In other words, anyone associated with a mainstream media outlet should be able to post without restriction.

For other kinds of reporters, it’s less clear. According to a report by the Reporters Committee for the Freedom of the Press, a California Court of Appeal has interpreted the shield law to at least cover bloggers, but that decision doesn’t appear to cover people who don’t post on a recurring basis. If someone captures a newsworthy video and just makes a one-off post about it, it looks like the bill would allow its censorship (assuming satisfaction of the other conditions described above).

It’s also not clear the journalism carve-out protects others who share the same information. For example, what if a journalist posts information censorable under the bill but for the journalism exception, then another person who’s not covered by the shield law incorporates the information into their own post (not simply sharing it, but creating their own new content with it)?

Making the example concrete, in the hypothetical above about the head of an immigration law firm, a journalist could post a story about the person defrauding their clients, but if someone else who isn’t a journalist mentioned the fraud in their own post, the journalist carve-out may not protect it.

What can California do instead?

While the government cannot broadly censor protected speech about victims of threats or harassment, there is plenty California can do to actually protect immigrants and those who provide services to them. Under current California law, threats and harassment are already illegal, and AB 2624 adds further civil and criminal liability for people who commit those offenses against individuals who provide or receive immigration services. Current law also enables victims of harassment to obtain court orders requiring their harasser to stop contacting them. When appropriately scoped (which is not always the case), such orders allow the state to target threats of violence without restricting protected speech.