California AB 2 attempts to financially penalize social media platforms for the speech that they host. Hiding behind vague language and a false distinction between design and content, the bill is a Trojan Horse for aggressive censorship.
NetChoice Veto Request of AB 2, Astronomical Liability for Platforms Hosting Online Speech
September 1, 2026
The Honorable Gavin Newsom
Governor of California
Dear Governor Newsom,
California has a free speech problem. While this problem is expansive and multi-jurisdictional, this letter specifically relates to AB 2. The bill attempts to address the complex and constitutionally guaranteed activity of expressing oneself online. Instead, what it brings to the discourse is the less-than-nuanced “solution” of making free expression too expensive for platforms to host. In true Sacramento fashion, endless litigation is seen as an appropriate answer to the problem of its citizens’ fundamental rights.
NetChoice, a trade association dedicated to free enterprise and free expression online, has spoken out against this bill since it was introduced in 2025. The bill has undergone changes, in all likelihood because it well understands its legal and constitutional infirmities. Attempting to scale the twin peaks of Section 230 and the First Amendment, AB 2 rhetorically reimagines censorship as a matter of conduct and design regulation–a popular maneuver in California.
Ultimately, the legislation and the politicians who champion it take issue with the underlying speech. The machinery is simply an excuse to prohibit minors from engaging with content that lawmakers oppose. This is not the work of the government; rather, it is the proper role of families. NetChoice respectfully requests a veto of yet another speech regulation that will invite constitutional challenge.
The Return of Age Verification
NetChoice has been consistent and clear in its opposition to state-mandated age verification efforts. AB 2 is no different. While it does not contain an explicit age verification requirement, collecting the personal data of every user in order to confirm their age and identity is the only way to offer the type of content and design personalization that the bill demands in order for a platform to avoid liability. As such, it will obliterate anonymity for Californians who have a right to it, undermine privacy and cybersecurity for users of all ages, and will absolutely invite a constitutional challenge.
Design vs Speech
There has been much ado made about the supposed legal distinction between regulating platform design or speech. Let us–briefly–presuppose that this distinction is meaningful, that the state is permitted to reconstruct a platform on its own authority but is not permitted to censor or disadvantage the underlying expression. AB 2 still directly implicates platform content. While Section 1 of the bill shares the legislature’s unsubstantiated opinion relative to platform design, there is nothing in the bill itself that limits liability to design choices. Instead, it increases the liability costs overall. That means that the million-dollar hit applies to lawsuits involving access to speech as much as product design. AB 2 may be rhetorically targeted at platform architecture, but it remains a speech regulation bill at its core.
Let us now return to reality, where the distinction between design and speech is not conceded. What does it mean that the state regulates the design of a social media platform while remaining indifferent to the underlying speech? Whether the features are continuous scrolling or the algorithm that helps order user content, there is no meaningful way to divorce the content from the features that organize it. Indeed, as has been repeated by others before us, if social media platforms contained continuous scrolls of videos depicting grass growing, or paint drying, no lawmaker in the world would have introduced a bill like AB 2. Every legislative effort to hamper or punish speech platforms is animated by the same impulse: censoring speech.
Speaker-Based Discrimination
AB 2 began as a wholesale expansion of liability for all platforms. To make itself more palatable, the legislation has been amended to focus its ire on platforms that generate over $100 million in gross revenue. This brings companies like Meta, Google, TikTok, X, Reddit, and Discord into the state’s crosshairs.
While this was done for political viability, the authors introduced a significant constitutional problem. AB 2 argues that a platform’s design is inherently harmful to children (with no actual evidence or scientific consensus having been reached) and yet it carves out platforms based on an arbitrary size threshold. It holds certain speakers more responsible for speech than others, incentivizing those burdened with liability to strip their platforms of user-generated expression. The state is not constitutionally permitted to treat certain speakers differently or promote certain speech platforms over others.
Unconstitutionally Vague
Whether you accept the sponsor’s argument that they are “only” interested in the design features of the platforms, or if you are convinced by free speech advocates who say that the underlying content is the target, one must accept that the million dollar or treble damages is designed to motivate significant content moderation alterations.
A major problem is that there is no way to uncover what changes actually need to be made in order to avoid the astronomical liability cost the state is seeking to impose. Again, this is fundamentally motivated by a desire to limit minors’ access to constitutionally protected speech. The platforms, in an attempt to avoid ruinous fines and to limit legal exposure, will have no recourse but to wildly pare back their features and restrict access to lawful content.
The vagueness issue seems like a secondary one, but in many of the cases that NetChoice has brought against other censorship bills–including ones in California–it has been a major stumbling block for the state.
Collides with Other California Censorship Legislation
AB 1709, also passed this session, outlaws personalized feeds for minors in California. While this is unconstitutional in its own right, and represents a tremendous safety hazard for California’s youth, it puts itself at odds with AB 2. While one bill places liability on design features for minors, the other seeks to eliminate them entirely. This strikes one as both constitutionally incoherent and redundant. Perhaps the sponsor can elucidate which of his illegal bills he prefers.
Conclusion
The First Amendment has been under routine assault by the California legislature for quite some time. They have passed so many overlapping, conflicting, and unconstitutional speech regulations that it is genuinely difficult to keep track of them all. There is no sign that the next session will bring much needed change. A kitchen sink approach to constitutional rights is a sad state of affairs for one of the most significant legislative bodies in the United States. AB 2 is not a creative or innovative approach to the nuanced issue of online safety. Instead, it is an aggressive broadside against the First Amendment rights of platforms and Californians of all ages. The legislature remains a poor substitute for parents and Sacramento remains disempowered to step into the role of speech police. For these reasons, NetChoice strongly opposes AB 2 and respectfully urges you to veto the legislation (The views of NetChoice expressed here do not necessarily represent the views of all NetChoice members).
Sincerely,
Zachary Lilly
Director of Government Affairs
NetChoice
NetChoice is a trade association that works to make the internet safe for free enterprise and free expression.