The California Effect

How the Golden State is Driving the Progressive Agenda on Free Expression

The California Effect

November 28, 2023

Home / Reports / The California Effect

PEN America Experts:

James Tager

Director, Research

Allison Lee

Managing Director, Los Angeles

Read “The Florida Effect”

In our accompanying report, we examine how Florida’s legislative proposals have been replicated around the nation, providing a blueprint for suppressing Americans’ speech.

Introduction

In a March 2023 interview, California Governor Gavin Newsom outlined his intention for the Golden State to serve as a “moral authority” of the nation. How to effectuate this lofty goal? Wield the state’s gargantuan market power, population, and “unique capacity to lead” to incubate and export a policy agenda to be emulated in state legislatures across the country and eventually, in Congress.¹

Newsom’s assertion that California does—and should—have an outsized effect on the policies of the nation is not a new one. The phenomenon scholars have dubbed “The California Effect” can be traced back to the 1970s, when state legislators insisted on a carve-out to the national Clean Air Act, imposing harsher auto emission regulations on automakers seeking to sell within state lines. Faced with the prospect of losing a major slice of the American market, domestic and foreign manufacturers acceded and successfully lobbied their own lawmakers to impose standards modeled after the California legislation—standards that still govern auto regulation and clean energy nationwide.² The state’s jurisdiction encompassing both Silicon Valley and Hollywood has only heightened the state’s national profile in recent decades, and further positioned it as an authority on artistic expression and tech regulation. Today, California’s laws are among the most widely copied in the country—from labor and consumer protections to building codes and data security laws—solidifying the state’s unique role as issue-spotter and incubator for progressive policies that may be adopted by Democratic legislators across the country.³

In recent years, Republican governors like Ron DeSantis and Greg Abbott have sought to use California’s own tactics to challenge the state’s purported dominance, empowering lawmakers to craft and export their own model legislation—and in doing so, set the red state legislative agenda.⁴ In The Florida Effect, released as a companion to this report, PEN America identifies that state’s copious and far-reaching restrictions on free expression—from educational gag orders to anti-drag laws—as among its most influential legislative exports, as well as Governor DeSantis’s role in particular in reviving free expression as a major policy and ideological battleground.⁵ In response, Newsom and other California lawmakers have doubled down. The result: a legislative race with national ramifications.

In the past three years, California lawmakers have introduced their own slate of bills taking on some of the thorniest speech-related issues of the day, from tech regulation to press freedom. In contrast to DeSantis’s significant influence on the legislation introduced in Florida, much of the ideation and innovation in California is coming from individual legislators. Yet, under Newsom, these policies have become inextricable from California’s progressive reputation, buttressing the governor’s public positions on book banning and attacks on press freedom, and in doing so, emerging as the benchmark for other progressive state legislatures.⁶

California’s free expression policies aren’t just reactive; they often set new legislative agendas where states may not have laws on the books, lend legitimacy and visibility to localized proposals, adapt international strategies to U.S. contexts, or breathe new life into nascent or previously defeated bills. In September 2022 California lawmakers approved the California Local News Fellowship, a multiyear initiative designating $25 million in state funds to support early career journalists in local newsrooms in response to plummeting local news readership and circulation.⁷ The fellowship was not the first in the country. In 2018 New Mexico and New Jersey launched their own local news–funding initiatives to little national fanfare. However, the visibility and sheer magnitude of the California program elevated the approach to national legitimacy. Less than a year later, Washington lawmakers voted to fund a public-interest journalism fellowship at Washington State University directly modeled after California’s program.⁸

Since 2021, California’s state legislature has introduced and successfully passed into law several first-of-their-kind policies that have shifted the landscape for free expression in the state – and even for the country at large. This report contains laws that PEN America heralds as exemplary models for promoting the equitable exercise of free expression, as well as those that we heavily critique for their language, scope, and requirements. What these policies, however, have in common is their undeniable reach: all of them have inspired or buttressed similar legislation in states around the country or at the federal level. The laws proposed and passed in California promise to have a major impact on the free expression rights of not just Californians, but all Americans.

As with our Florida report, this report is not intended to be a comprehensive index of all recent California state laws and legislative proposals implicating free expression. Our goal is rather to assess major legal arguments and strategies currently gaining traction, especially among Democratic lawmakers, to highlight which aspects should be emulated—and which perhaps, reconsidered—as these templates are considered across the country.

Decriminalizing Artistic Expression

As states from Florida to Tennessee have pushed laws explicitly dedicated to expanding the categories of content excluded from First Amendment protection, California’s recent Decriminalizing Artistic Expression Act, signed into law by Governor Newsom in September 2022, attempts to expand protections for engaging in potentially controversial speech.⁹ The bill, which was passed unanimously in both houses of California’s legislature, was designed to tackle the issue of racial bias when it came to introducing rap lyrics as evidence in criminal trials. While rap lyrics themselves are not independently criminalized, the law comes in response to a rising tide of knowledge—from academics and popular media—of the racial bias inherent in introducing rap lyrics as evidence in criminal trials, and more broadly, conflating performance persona with real life.

Louisiana rapper Mac Phipps had his lyrics used as evidence against him in court–he was sentenced to 30 years imprisonment. Credit: Sheila Phipps

In 2022 a New York Times investigation showed that rap lyrics were used as evidence in hundreds of cases, from homicide to drug charges and gang activity, and that the practice has only become more common since 2005.¹⁰ In the past few years, rap lyrics have been introduced as evidence against rappers such as Tiny Doo, Mac Phipps, and Grammy-nominated artist Young Thug. And this is not just an issue that affects famous rappers: since 2020, prosecutors have reportedly used artists’ lyrics as evidence against them in over 500 criminal cases,¹¹ and scholars have documented hundreds of similar cases in the years prior.¹² The NPR podcast Louder Than a Riot, which investigated the issue from 2020 to 2022, argued that such prosecutions represented “rap lyrics being weaponized . . . by the criminal justice system policing Black creativity.”¹³ Artists’ groups have charged that the use of rap lyrics in criminal trials represents the de-facto criminalization of artistic expression.¹⁴

Anatomy of a Law

The Decriminalizing Artistic Expression Act increases protections for artistic expression by decreasing the instances in which any form of creative expression may be cited as representative of criminal activity. While the law was created with rap lyrics specifically in mind,¹⁵ it extends to all forms of creative expression, from performance art to dance to film and literature.

The law does not bar rap lyrics from being introduced as evidence in criminal proceedings. Instead, it requires that the court balance the value of the lyrics as evidence with the danger of prejudicing the jury into viewing the performer’s creative expression as evidence of guilt or of a criminal lifestyle. The court must consider the “probative value” of the lyrics as “minimal” unless the lyrics:

were written soon after the alleged crime;
describe something sufficiently similar to the alleged crime; or
includes a factual detail about the alleged crime not otherwise available.

If the prosecution intends to introduce rap lyrics as evidence, its admissibility must be determined outside the hearing of the jury.

Additionally, the law enables attorneys to actively challenge the relevance of the connection between expression and criminality, as well as the historically targeted nature of the practice. If such lyrics are introduced as evidence, the defense is allowed to introduce additional evidence such as research or expert testimony on racial bias or the cultural context of rap.¹⁶

The law’s breadth and impact are already being tested. Since its adoption, at least four people have appealed their convictions, seeking to avail themselves of the law’s new standards retroactively. The California Supreme Court has granted review of one of these cases, which will play a major role in determining the law’s chronological scope of effect.¹⁷

Analysis

PEN America has previously played a substantial role in supporting the Rap Music on Trial legislation, a similar bill in New York state, introduced in November 2021.¹⁸ The bill passed the New York State Senate in 2022 but ultimately failed to pass the Assembly.¹⁹ The Rap Music on Trial bill similarly would have operated not as a complete bar against introducing rap lyrics, but would have implemented “guardrails” similar to the California law. The Rap Music on Trial bill would have:

limited prosecutors to introducing lyrics as evidence only if they could prove that the lyrics described the specific crime being alleged;
required a hearing on admissibility of the evidence, outside the presence of the jury; and
required the court to find that the value of the evidence outweighed the possibility it would prejudice the jury.²⁰

In January 2022, PEN America was part of a coalition of 21 New York arts organizations that argued in an open letter that “prosecutors’ use of rap music lyrics as evidence in criminal cases perpetuates racial discrimination against Black and Brown artists, who are predominant in the genre and whose voices have a history of being silenced by the criminal justice system . . . When prosecutors focus solely on references to violence in rap music, they are taking the lyrics out of context and neglecting to consider the conventions of the music genre. They are equating the artists’ creative liberties and artistic persona as confessions of guilt, which is a severe misrepresentation of the artform and goes against the very spirit of freedom of expression.”²¹

The same rationale that led PEN America to support the Rap Music on Trial bill led to our support of the Decriminalizing Artistic Expression Act when it passed in 2022. Supporters of the law have called for similar legislation on a federal level—and such a proposal exists. In August of the same year, Representatives Hank Johnson (GA-04) and Jamaal Bowman (NY-16) introduced the Restoring Artistic Protection Act (RAP Act). The RAP Act would add a provision to the Federal Rules of Evidence that would “limit the admissibility of evidence of an artist’s creative or artistic expression against that artist in court.”²²

The California Effect

While California is not the first state to introduce a bill addressing the criminalization of artistic expression in legal proceedings, it is the first—and only—state so far to successfully sign such a measure into law.

When it was passed in September 2022, the bill, which had already drawn national attention throughout its run through the state legislature, received yet another boost from major players in the music industry. California-born rappers Ty Dolla $ign, E-40, and Too $hort, among others, ceremonially joined Newsom on a video call as he signed the legislation. Thereafter, the Black Music Action Coalition released a statement “applaud[ing] Governor Newsom for his willingness to stand with Artists and defend our First Amendment right to freedom of speech.”²³ Harvey Mason Jr., who currently serves as the first Black CEO of the Recording Academy, heralded the law as a model for the rest of the country, writing, “Today we celebrate an important victory for music creators in the state of California. Silencing any genre or form of artistic expression is a violation against all music people. The history that’s been made in California today will help pave the way forward in the fight to protect creative freedom nationwide.”²⁴ Newsom also took the moment to assert California’s ongoing role as a legislative trendsetter, particularly for free expression issues, sharing in a statement, “California’s culture and entertainment industry set trends around the world, and it’s fitting that our state is taking a nation-leading role to protect creative expression and ensure that artists are not criminalized under biased policies.”²⁵

A still from the video call where Governor Newsom signed the Decriminalizing Artistic Expression Act into law in California. Credit: California Governor Gavin Newsom

The success of California’s law has breathed new life into both the New York and federal proposals. Within weeks, the federal RAP Act, which had seen no movement since its introduction in July 2022, moved ahead to the House Subcommittee on Crime, Terrorism, and Homeland Security. In April 2023 Johnson and Bowman reintroduced the bill, with support from many of the same California-based coalition members who supported the California law, including the Recording Academy, Black Music Action Coalition, and SAG-AFTRA.²⁶ The New York proposal was similarly reintroduced to the 2022–2023 legislative schedule, but ultimately met the same fate as its predecessor, dying in the Assembly.²⁷

Still, the reintroduction of the federal bill and the implementation of California’s law, which went into effect on January 1, 2023, signal a potential future for similar legislative proposals as well as a larger cultural understanding of the practice of criminalizing certain forms of expression as a direct—and often targeted—free speech violation. In November 2022 The New York Times and The Atlanta Journal-Constitution ran an open letter, signed by PEN America and more than 100 major musicians, academics, and entertainment industry titans, including 50 Cent, Alicia Keys, and Coldplay, explicitly urging “legislators at the state and federal level to explicitly limit how creative expression can be used against defendants on trial.” The letter cited the practice’s “obvious disregard for free speech and creative expression” as well as its “punish[ment] of already marginalized communities and their stories of family, struggle, survival, and triumph.” The letter notably concludes by pointing to “signs of hope across America,” the first and foremost: the California bill signed into law that fall.²⁸

Social Media Content and Transparency

As Hollywood establishes California’s influence in the world of artistic expression, the state’s role as the home of Silicon Valley has positioned it as the country’s default tech regulator. In the past two decades, California’s online security laws requiring notification for data breaches have served as models for measures passed in nearly half of U.S. states.²⁹ Many of California’s most pioneering policies take aim at the way technology intersects with other industries like education and journalism, from dictating how much information tech companies can retain about students, to mandating that platforms pay for local news content.³⁰

California’s sway in the tech sector originates from the same economic-cultural factors at the heart of the original California Effect. If tech giants can’t operate in the state or sell to California consumers, they risk losing a major market. Historically, as a result, companies have shifted their policies and practices to comply, rather than crafting new rules and processes for Californians, and in doing so, created the space for other states, and in some cases, Congress, to enshrine these policies in law.³¹ Recently, tech executives have pushed back on some legislation, suggesting that were these proposals to become law, it would result in the removal of certain site and app features for California users.³² Notably, these threats of withdrawal from the state lose their potency if other states end up adopting similar legislation nationwide.

California’s tech regulation policy has repeatedly drawn from international models.³³ In the realm of free expression, this approach breeds both innovation and unique challenges, chief among them, that many of these international bills and their approaches have not previously been subjected to First Amendment scrutiny. Amidst worthwhile attempts to address issues of major concern—such as the circulation of hate speech on platforms or the social media–informed teen mental health crisis—these laws can run afoul of constitutional standards for protected expression and access to information.

PEN America has written extensively on the ways that policies and practices of social media companies can threaten free expression and implicate other human rights. In our reports No Excuse for Abuse and Shouting into the Void we have advocated for improvements to policy and product design to better protect and support users facing online abuse, including the revamp of existing tools like harassment reporting mechanisms.³⁴ PEN America has also been at the forefront of national conversations examining the ways disinformation and extremism interfere with equitable exercise of free expression, as demonstrated in our reports Hard News: Journalists and the Threat of Disinformation and Hate in the Headlines: Journalism & the Challenge of Extremism.³⁵ To combat this threat, we have generally supported the right of platforms to set their own content moderation and transparency policies as an essential part of enabling free expression on platforms, and pushed for more public visibility of platform policies, in line with the Santa Clara Principles on Transparency and Content Moderation.³⁶

The following laws, both enacted in California in the past year and a half, represent the major legislative strategies currently being tested to address major privacy, security, and transparency concerns in the tech space. While each is distinct, the laws collectively mandate increased transparency and oversight by and for tech companies intended to protect users and increase accountability and transparency for platforms, two causes PEN America has long promoted, and there are aspects of these laws that we support in isolation.³⁷ However, in their current iterations, these laws by and large risk giving the state too much power to both determine and limit the scope of information available to online users, mirroring precisely the kind of authority other states have pursued to silence and censor.

California Social Media Transparency Bill (AB 587)

In September 2022, to much fanfare and scrutiny, Governor Newsom signed AB 587, calling it a “first-of-its-kind social media transparency measure to protect Californians from hate and disinformation spread online.”³⁸ The law requires social media companies to share more information about their content moderation policies with the public and the state attorney general, with a specific emphasis on certain content including that flagged as hate speech, disinformation, harassment, or extremism.³⁹

Anatomy of a Law

Structurally, the requirements of the California Social Media Transparency Bill are explicitly fashioned after the disclosure provisions for business privacy policies established by the California Privacy Rights Act (CPRA), a ballot measure passed in 2020, which requires that online services disclose their privacy policies to consumers. The California Social Media Transparency Bill (AB 587) uses near-identical mechanisms to the CPRA, requiring that social media companies publicly share certain information with users as well as submit regular reports regarding internal processes to state regulators, in this case the state Attorney General.

However, the California Social Media Transparency Bill’s required disclosures extend beyond reporting on data collection procedures and into the realm of reporting a platform’s approach to specific forms of content.

The bill introduces two major reporting obligations for social media companies. Under the law, covered social media platforms are required to:

make terms of services publicly available to all users of all company-owned social media platforms (for example, Meta would be required to provide distinct terms of service for each of its platforms, e.g., Instagram, WhatsApp, Facebook).
- The law also requires that terms of services include: (1) a description of the process by which users may flag content they perceive to violate the platform’s content policies, (2) a list of potential actions the company could take against content or a user in response to a violation, and (3) contact information by which a user may ask any questions about the terms of service.
submit to the state Attorney General a semiannual report outlining its terms of service with particular attention to the following categories of content: (a) hate speech or racism, (b) extremism or radicalization, (c) disinformation or misinformation, (d) harassment, and (e) foreign political interference.
- Companies are required to report whether their current terms of service address these categories, how they define these categories, and any existing policies, including those related to content moderation, intended to address these categories of content, the total number of flagged items in these categories, and other statistical disclosures. When disaggregated, the number of required disclosures exceeds 160.⁴⁰
- The Attorney General is required to make all submitted terms of service reports available to the public in a searchable form on the state’s official website.⁴¹

Analysis

This law mandates two types of disclosure: disclosure to the public (aka all users of the platform) and disclosure to the state government. Broadly, PEN America is in favor of the first type of disclosure, but is far more skeptical of the second type.

The law’s provision requiring covered social media platforms to make terms of service publicly available to all users falls into the first category. For the past several years, PEN America has pushed for greater public visibility of platform policies and advocated for social media companies to adopt transparency policies as an essential part of enabling free expression online.⁴² While we have largely pushed for platforms to adopt these policies voluntarily, we have at times advocated for government and state actors to more explicitly encourage transparency and disclosures to the public, specifically, in alignment with Santa Clara Principles on Transparency and Accountability in Content Moderation.⁴³

Indeed, in December 2021, PEN America welcomed the introduction of the federal Platform Accountability and Transparency Act, which would create a federally funded program for researchers and journalists to request access to data from social media companies, including on their use of ranking algorithms and content moderation—and provide legal protections for use of said data. In a December 2021 press release, PEN America stated, “PEN America supports the goals and the core provisions of this bill, and views it as a valuable starting point for addressing the alarming lack of transparency around the inner workings of the social media platforms that so directly impact our lives.”⁴⁴

At the same time, we are generally wary of mandates that position government entities as arbiters of speech and editorial decision-making in the online information space, even indirectly. Through its semiannual reporting requirements, California’s law delineates a process whereby social media companies must report detailed information about their content moderation procedures to the state Attorney General.⁴⁵ What is less apparent within the text of the law itself is whether, or to what extent, the state has an evaluative role in assessing these policies. The Attorney General is required to make these submissions available to the public, but if a government office is simply intended to be a clearinghouse for this information, it is strange to give this power to the office that also has the power to sue social media companies for their content moderation decisions.

There is an important distinction to be made regarding the different types of information that the law’s two disclosure provisions require a platform to share: terms of service versus individual content moderation decisions. The first is more likely to fall under the Zauderer standard for compelled speech, a legal standard introduced in the context of advertising that holds that certain kinds of compelled commercial speech containing purely factual and uncontroversial information are subject to a lower level of First Amendment scrutiny than kinds of compelled speech.⁴⁶ However, the second requires companies to explicitly disclose their rules for certain content categories; this content-based distinction alone opens up the law to First Amendment challenge.⁴⁷

The law’s requirements for more granular disclosures to the Attorney General could also open a way for the state to indirectly encourage companies to censor content in the manner the state prefers. Companies are considered in violation of the law if they fail to submit their reports, yet it is also a violation to “materially omit or misrepresent required information” in a submitted report.⁴⁸ However, a core requirement of the law is the disclosure of a social media company’s working definitions of various categories of speech, including extremism, racism, and disinformation, terms that, by nature, lack a single standardized definition. These provisions create the possibility that the Attorney General and affected social media companies will disagree about what content falls within the platforms’ definition of racism, disinformation, and the like. Under these circumstances, it is unclear what authority is vested in the Attorney General to decide whether particular content moderation decisions are evidence of a platform’s material omission or misrepresentation. The statute also leaves unclear what remedy the state would undertake to right a supposed violation.

It is not guaranteed that the Attorney General would take such a muscular approach under the law. Currently, there are no explicit mechanisms by which the Attorney General can directly require companies to eliminate or shadow-ban content. The law merely creates potential space for the Attorney General to push their interpretation of certain content categories onto platforms. But that is enough to raise constitutional concerns.

It is well-known that the government cannot censor indirectly what it cannot censor directly. If the Attorney General has the authority to review moderation decisions in the aggregate and determine whether a company is enforcing its own policy, that is a potential backdoor for the state to regulate content moderation decisions.⁴⁹ Platforms could be incentivized to change either their rules or their enforcement procedures to avoid future government oversight or blowback. Such changes could include capaciously filtering and flagging any content that uses terms seen as racist or extremist, regardless of the context in which these terms are used.⁵⁰

One social media company has challenged the law citing these concerns. On September 8, 2023, X (formerly Twitter) sued California over the law, alleging that the law’s main purpose is “to pressure social media companies to eliminate or minimize content that the government has deemed objectionable.”⁵¹

To be clear, PEN America agrees that social media companies should disclose far more data than they currently do, and that such transparency would go a long way toward helping to address issues such as online abuse and disinformation. The Santa Clara Principles on Transparency and Accountability in Content Moderation, which PEN America has endorsed, remain the guiding standard for such transparency requirements. But mandating reporting to government actors, with such actors having unclear boundaries over what authority they have to utilize such reporting, is a far more complicated proposal.

The California Effect

At the time of signing, Governor Gavin Newsom explicitly positioned the law as a “nation-leading social media transparency measure” intended to curb the spread of “hate and disinformation that threaten our communities and foundational values as a country.”⁵²

California was not the first mover this time, however. This law came on the heels of both New York’s new platform transparency law and of transparency and disclosure provisions in social media laws passed in Florida and Texas in 2021. The latter two laws also made headlines for supporters’ drawing on allegations of social media bias against conservative political figures as a rationale to support the legislation. The Florida law accompanied proposals that all but eliminated social media moderation of any “journalistic enterprise” or candidate for office.⁵³

As a result, the question of whether a government can compel social media companies to affirmatively “host” certain speech has become the topic of major legal and public scrutiny. Less often discussed are the transparency requirements that were also included in both of those laws. The Fifth Circuit Court of Appeals upheld the entirety of Texas’s social media law, including the transparency provisions. The Eleventh Circuit found much of the Florida statute to be unconstitutional, but did uphold some of the less burdensome transparency requirements the law imposed under the Zauderer standard.⁵⁴ This term, the Supreme Court is considering the constitutionality of the Florida and Texas social media laws together; it will review the states’ rules restricting platform content moderation as well as requirements for platforms to offer individual notices and appeals for users affected by content moderation decisions. However, at the recommendation of the Solicitor General, the Court will not review the general disclosure provisions of either law.⁵⁵

This comes at a time when legislators across the country are evaluating their own states’ course: last year, the industry group Computer & Communications Industry Association identified more than 100 bills in state legislatures that would impose new regulations on social media content moderation policies.⁵⁶ The results of the above pending litigation against the Florida and Texas laws will likely pave the way for other state social media transparency bills undergoing First Amendment scrutiny, including California’s.

Age-Appropriate Design Code Act

In August 2022, the California legislature unanimously passed the Age-Appropriate Design Code Act (AADCA). Governor Newsom signed the act into law the following month, with support from Common Sense Media, Fairplay, and privacy advocates like the Electronic Privacy Information Center (EPIC).⁵⁷ The law drew immediate criticism from leaders in the tech industry. The law is scheduled to go into effect July 1, 2024.⁵⁸

The AADCA was modeled after the United Kingdom Information Commissioner’s Office code of practice for age-appropriate design, which was mandated by the UK’s Data Protection Act 2018 and went into effect September 2021. The UK’s code is a standard used to determine whether a company is in compliance with the UK’s General Data Protection Regulation (GDPR).⁵⁹ Notably, the law of the United Kingdom does not grant the same level of free expression protections as guaranteed under the First Amendment of the U.S. Constitution, meaning that a regulatory proposal that may be legal under UK law is not necessarily constitutionally compliant.⁶⁰

Anatomy of a Law

Drawing on the United Nations Convention on the Rights of the Child and modeled on U.K. law, the California Age-Appropriate Design Code Act (AB 2273) introduces a number of explicit and distinct requirements for all businesses offering online services or features likely to be accessed by children:

Businesses must conduct a Data Protection Impact Assessment (DPIA) before offering an online service likely to be accessed by children, to be made available to the state Attorney General within five days of completion, and include whether the design of the online product, service, or feature could harm children, including by exposing children to harmful, or potentially harmful, content on the online product, service, or feature.
If a business is determined to offer services, products, or features likely to be accessed by children, under the law, the business is:
- required to automatically set all default privacy settings offered by an online service, product, or feature to the highest possible setting, unless the business can demonstrate a compelling reason that another setting would be “in the best interests of children”
- required to provide privacy information, terms of service, policies, and community standards prominently in clear language suited to the age of children likely to access the online service
- barred from using personal information for any reason beyond that which it is collecting or in any way that is “materially detrimental to the physical health, mental health, and well-being of a child”
Noncompliance with the law can result in potentially severe financial penalties: $2,500–$7,500 in fines per affected child.⁶¹

The law also creates the California Children’s Data Protection Working Group, consisting of 10 people with expertise in children’s data privacy, mental health, computer science, and children’s rights, to guide implementation, including identifying online services, products, or features likely to be accessed by children and determining the “best interests of children” standard.⁶²

The law was almost immediately challenged on First Amendment grounds. Between December 2022 and February 2023, technology lobbying group NetChoice filed a complaint and a request for preliminary injunction against the law, challenging its data collection provisions and “direct aim at content.”⁶³

Several organizations, among them The New York Times and the LGBT Tech Institute, filed amicus briefs in support of NetChoice. These supporters argued that the AADCA would force many websites, including news organizations, to change their editorial standards and the content on their sites in order to “mitigate risk to children”—even where the content at issue is entirely lawful—in violation of the First Amendment.⁶⁴ Other civil society organizations, including the Children’s Advocacy Institute, Center for Humane Technology, and Center for Digital Democracy, have thrown their support behind California, arguing that the AADCA is an appropriate, tailored, and essential response to the social media–informed mental health crisis among youth in this country.⁶⁵

On September 18, 2023, a federal district court hearing the case granted a preliminary injunction, finding that the law likely violates the First Amendment.⁶⁶ The injunction prevents the enforcement of the AADCA as the case moves forward. On October 18, 2023, the state of California appealed the injunction, and the case remains before the courts.⁶⁷

Without clear guidance, government entities become the arbiters of determining the potential “harm” of not just procedures, like data collection, but of editorial content.

Analysis

California’s sweeping Age-Appropriate Design Code Act (AADCA) gives the state government immense power to dictate the appropriateness of certain speech. This in turn creates powerful incentives for platforms to preemptively restrict speech for fear of state disapproval, which resultantly threatens to create undue barriers to information access for all. The law also gives perhaps unforeseen credence to other states’ efforts to use child protection bills extremely broadly, to censor any content they find objectionable, including content concerning LGBTQ+ identities and themes.

What concerns PEN America most about the law is its heavy reliance on the broad, undefined language of “harm” and “well-being,” particularly in the required DPIA assessment to determine whether minor users should be able to access certain information. At no point does the AADCA offer a working definition for the words “harm” or “harmful,” despite requiring businesses to analyze and filter their content through this lens. Without clear guidance, government entities—presumably California Children’s Data Protection Working Group—become the arbiters of determining the potential “harm” of not just procedures, like data collection, but of editorial content. It is possible that the absence of standardized criteria along with the creation of the Working Group is intended to allow space for nuance in what is ultimately a case-by-case determination. However, to place this degree of subjective decision-making in the hands of government officials, particularly when the stakes of such decision-making are access to potentially essential information, is to risk serious consequences for free expression.⁶⁸

Ultimately, the law requires businesses to predict any content or practice that lawmakers could consider to be “harmful.” In some cases, these distinctions may feel intuitive. But what one group of government officials views as beneficial for children’s well-being—for example, a video featuring a same-sex couple, or information about sexual health and contraception—could be deemed “harmful” by another.⁶⁹

As a free expression organization, PEN America advocates in favor of maximizing individuals’ information access on and offline. This is not to say that certain content, such as harassment, violent images, and even certain viewpoints, does not have the capacity to inflict harm or offense on individuals or that parents don’t have legitimate concerns about what their children might access online. But from our research on book bans to our programs on campus free speech, PEN America resists the efforts to limit or remove public access to information, and instead advocates for policies and practices that empower and better inform users to navigate an increasingly complex and crowded information landscape. Given the potentially significant financial consequences of noncompliance with the AADCA, PEN America is concerned that, were the law to be upheld, businesses will increasingly “play it safe,” restricting age access to a wide swathe of information or removing content altogether, to the detriment of free expression online.

There is a related concern that laws specifically singling out child use will result in even more intrusive data collection policies to ensure compliance. Although the law does not require the direct collection of any age data for use, it requires a company to estimate the likely age of children using its services “with a reasonable level of certainty.”⁷⁰ It is unclear whether this would, in effect, require age verification, though it is difficult to imagine how companies could comply with this standard in a way that is not invasive or burdensome. At a minimum, it will encourage age verification to access a wide variety of constitutionally protected content, which will either force websites to enact burdensome and privacy-invasive schemes in order to host content not fit for children in the eye of the government or tailor their content to include only that which is appropriate for children—a lose-lose proposition for free expression. Furthermore, requiring adult users to produce state-approved documentation to prove their age and/or submit to biometric age-verification testing imposes significant burdens on adult access to constitutionally protected speech and “discourage[s] users from accessing [the regulated] sites.”⁷¹

This is not to say the law does not have positive aspects. For example, the law’s requirement that companies publicly share and communicate to all users in a concise, accessible manner the terms of service and other company privacy and moderation policies further actualizes the public transparency goals set forth in the Santa Clara Principles.⁷² The law’s restrictions upon the use of personal information collected by private companies, which limit the usage to the reason for collection, also provides a useful model for data privacy protection.

Additionally, the requirement that DPIAs be made available to the public enables individuals to independently review policies and determine which companies they believe are most carefully considering their needs, including considerations of the use of their children’s data. This provision requires thought in how it will be implemented: an unwelcome result is that businesses covered by the law simply declare their services or sites as 18+ rather than comply with the administrative requirements. This specific effect could be mitigated by narrowing the scope of the law to businesses “directed at” or more explicitly intended for children.⁷³

In sum, there are aspects of this law that are laudatory, such as the content-neutral data use restrictions and public disclosure requirements. Additionally, the framework for protecting children’s privacy online, including the requirements for DPIAs and their public availability, are potentially workable in harmonizing child safety and freedom of expression. There is a version of this law that could be an effective choice to fill in gaps in existing privacy laws and aid in more informed consumer decision-making. But as structured, the law is too far-reaching in its effect and consolidates too much power in state actors to determine “harm” to be consistent with free expression and access to information online.

The California Effect

Despite the current constitutional challenge to the AADCA, California’s latest internet safety rules are likely to spread to other states. Just one week after the AADCA was signed into law, four members of the New York State Senate announced their intention to introduce a similar child protection bill.⁷⁴ The law has arguably served as inspiration for legislation in states like Maryland, Minnesota, and Utah.⁷⁵ The other potential inspiration for these bills has been the federal Kids Online Safety Act (KOSA), which was initially introduced in February 2022, before the California law, and was reintroduced in May 2023, after the AADCA was passed.⁷⁶

While the AADCA has arguably influenced the legislative vision of blue and purple states in its current form, the AADCA also risks giving credence to state legislation in Florida and other red states that limits children’s access to certain educational materials and content (educational gag orders), such as the history of slavery or sex education, or that targets LGTBQ+ expression. This would in turn validate a broader argument that subordinates free expression principles and the freedom to read, learn, and access information to a state’s determination that the information being limited or targeted is potentially harmful and should be censored.⁷⁷

Journalism and Press Freedom

California Journalism Preservation Act

As numerous civil society groups have identified—including PEN America, in our 2019 research report Losing the News—social media platforms like Facebook and X (formerly Twitter) are now the main mechanism by which many Americans find and consume news stories, including those from local outlets.⁷⁸ Yet, the ad profits from that online readership overwhelmingly accrue to the tech platforms, and not the media outlets from which the reporting derived, depriving journalistic organizations of crucial funding avenues even as local media outlets across the country struggle to remain profitable.⁷⁹ PEN America has noted that the local news crisis is an urgent one, and that it affects our democracy broadly. With the loss of local news coverage, communities are less likely to be politically informed, to be civically engaged, to see their government officials held to account, or to be able to access critical information—for example, on the COVID-19 pandemic—shared by familiar and culturally attuned sources they have reason to trust.⁸⁰

In the past several years, the increasing alarm over the collapse of local news outlets in communities all over the U.S. has led to a range of public policy proposals to fix the problem. In PEN America’s own report, we concluded that the best approach would be a massive infusion of public funds into local journalism accompanied by sufficient safeguards to ensure editorial independence.⁸¹ California took an encouraging step in this direction in 2022, with the launch of the California Local News Fellowship. Under this fellowship, California has pledged $25 million for a program at UC Berkeley, which would place journalists in underserved communities across the state.⁸²

Other states have tailored their approach towards compelling social media companies to pay their share. California is poised to become an influential endorser of this approach, via a major legislative proposal known as the California Journalism Preservation Act (CJPA). The bill is designed to redistribute the balance of power—and the balance of profit—between media organizations and the social media platforms that host their online content. The bill, as Assembly Bill 886, passed the State Assembly in June 2023, but stalled in the State Senate. It is currently expected to be reconsidered, albeit in significantly amended or restructured form, in 2024.⁸³

The California Local News Fellowship, based out of UC Berkeley, selected its first cohort of journalists in August 2023. Credit: John Morgan

Anatomy of a Bill

In its current form, the bill would do the following:

Require social media companies to pay a percentage of their revenue from advertising in California to digital media providers. The exact percentage would be determined through arbitration.
Create a system by which media outlets would assert that they are owed revenue-share if they appear on the platforms, and social media companies could contest or accept these assertions.
Affect only companies with at least 50 million U.S.-based users.
Require online journalism outlets receiving funds from this arrangement to spend at least 70 percent of the funds on their employees—news journalists as well as support staff. Outlets with five or fewer employees are required to spend only 50 percent in this way. Online outlets would have to report out these expenditures publicly.
Establish an “anti-retaliation” provision by which social media platforms would be prohibited from punishing online media companies for asserting their rights; for example, by refusing to allow their articles to be posted or by shadowbanning their content.⁸⁴

One built-in flaw with the link tax approach is that it rewards virality. The content that receives the most money under the arrangement is the same content that is already incentivized under social media’s predominating model, one that rewards clickbait, sensationalism, and the outrage mill.

Analysis

California’s legislature should be encouraged in its efforts to take the local news crisis seriously and to pursue solutions. However, this bill lacks specificity and includes provisions that could actively undermine its very goals, and ultimately, the protection of free expression and a thriving press in the state.

The act would mandate that large internet platforms distribute a portion of their advertising revenues to “digital journalism providers”; essentially, an indirect means of paying media outlets for the content they produce that internet users distribute online. Digital media providers become eligible for payment if their content is linked to on a social media platform. This type of arrangement—payment for linking to third-party content—is commonly described as a “link tax.” Link tax proposals have been rolled out in several countries, most recently in Canada earlier this year, to sustained debate over their effectiveness.⁸⁵ But one built-in flaw with the link tax approach is that it rewards virality. The content that receives the most money under the arrangement is the same content that is already incentivized under social media’s predominating model, one that rewards clickbait, sensationalism, and the outrage mill.⁸⁶ It is difficult to see how local news outlets or investigative journalism emerge among the winners of such an arrangement.

The bill also offers a flawed definition of a digital journalism provider, a.k.a the type of organization that would receive funds from this arrangement. The definition as set forth in the bill includes any entity with at least 25 percent of its editorial content consisting of information “about topics of current local, national, or international public interest.” This broad definition is helpful to ensuring that a broad range of news sites, especially those outside of traditional or legacy media, are captured. But such a definition also seemingly stretches well beyond news sites, pulling in things like blogs and even websites for advocacy organizations, making the definition potentially unwieldy and unworkable in effect. It is also unclear how, using the bill’s definition, the government would make this determination. Without greater specificity, this bill would leave government regulators in murky waters, defining for themselves and for the public what qualifies as news.

The bill is additionally scattershot in several key areas: It does not specify that these journalism providers need to be based in California. More importantly, the bill makes few distinctions between size or medium for the journalism outlets, a gap which would favor larger, not local, outlets. A recent amendment, written to address some of this criticism, exempts TV networks from being eligible for these payments, but this exemption would not apply to these networks’ websites, offering the networks an obvious work-around. That is to say, the biggest beneficiaries of this bill are likely to be national television stations and outlets offering sensationalist content, not local newspapers or investigative journalists.

While at first glance the bill’s retaliation clause may seem like a thoughtful protection, free expression groups have already warned that this provision could easily be weaponized by bad actors, fake news promoters, or media outlets catering to extremists, who could essentially threaten digital platforms with lawsuits unless they host their content.⁸⁷ Such a provision’s greatest effect may be to discourage thoughtful content moderation and potentially amplify disinformation.

PEN America believes that the CJPA, in its current form, while a well-intentioned effort to address the local journalism crisis, risks doing more harm than good. Major amendments could address several of the bill’s largest problems. But overall, this approach will funnel dollars to the largest news providers operating in the state, not necessarily the outlets that most need the funds. The CJPA also risks turbo-charging the exact dynamics that have made the digital sphere such a murky space for online expression: dynamics whereby clickbait, opinion pieces, viral outrage, and even disinformation overtake and outpace measured reportage and fact-based reporting.

As an alternative, we encourage other states to instead emulate California’s Local News Fellowship, which infuses funds directly into local journalism initiatives. This approach focuses funds on where they are most needed, and most useful.

The California Effect

Should California pass its Journalism Preservation Act into law, it could motivate other states to adopt such a model, creating a more tenuous landscape for local news outlets across the country. Federal legislators, too, are likely eyeing California’s efforts, and contemplating ramifications at the national level. A similar bill in Congress, the Journalism Competition and Preservation Act, was introduced in 2019, again in 2022, when it passed out of committee with a bipartisan vote, and in amended form in 2023, when it again passed out of committee.⁸⁸ While the bill has failed to make additional headway in the Senate, California’s implementation of such a policy could easily spur a national-level shift.

Journalists and Police Dispersal Orders SB 98

Though California legislation often inspires similar bills in blue states across the nation, some of its laws most critical to preserving freedoms of expression and speech have not yet been replicated. One such example is Senate Bill 98, which Governor Newsom signed into law on October 9, 2021, that protects the rights of journalists while covering protests.⁸⁹ The bill establishes the right of “a duly authorized representative of any news service,” to access areas closed to the public, cross police lines, and stay out past any curfews imposed by or because of protests, marches, and rallies. In addition, it explicitly prohibits law enforcement officers “from intentionally assaulting, interfering with, or obstructing,” a journalist “who is gathering, receiving, or processing information” they will communicate to the public.

PEN America has tracked anti-protest legislation since 2020, and released its report Arresting Dissent: Legislative Restrictions on the Right to Protest in May of that year. When SB 98 was proposed, PEN America issued a statement of support, so long as an amendment proposed by legislators late in the process, requiring journalists to receive permission from a commanding officer to report on a scene closed to the public, was excluded.⁹⁰ In September 2023, PEN America joined 20 journalism organizations and unions that came together to stand behind the bill in its original language, and it became law less than one month later.⁹¹ SB 98 significantly expands protections for journalists and ensures they can inform the public during a period of attacks on free speech. Though it is currently the only one of its kind, SB 98 can be a model for other states to reference as they create legislation to protect journalists and free speech.

Protesters and police officers at a Black Lives Matter Protest in San Francisco. California’s Journalist and Police Dispersal Orders exempts journalists from certain police restrictions and codifies journalists protections to ensure that they are fully able to document protests in the state. Credit: Michele Ursino

Education

Under Governor Newsom, California has billed itself as the anti–book banning state, and indeed, the governor has been a consistent voice in pushing back against book bans nationally.

On June 1, Governor Gavin Newsom, Attorney General Rob Bonta, and State Superintendent Tony Thurmond sent a joint letter to all county school superintendents, district school superintendents, and charter school administrators cautioning against book bans. The letter outlined educational civil rights and legal mandates that school administrators are required to follow to preserve freedom and ensure access to diverse perspectives and curricula.⁹²

Harvey Milk served as a member of San Francisco’s Board of Supervisors and was the first openly gay man to be elected to public office in California. In May 2023, the Temecula School Board struck down an elementary social studies curriculum that included a textbook that mentioned Milk – who the School Board president referred to as a “pedophile.” Credit: San Francisco Public Library

Anti-Book Banning Bill

On September 7, 2023, California’s legislature passed AB 1078, billed as an “anti–book banning bill.” Governor Newsom signed the bill into law on September 25. Supporters have portrayed the bill as their reaction to the book-banning craze that has swept the nation, including in some California schools.⁹³

The bill was introduced in February 2023, and gained public attention months later after a controversial book ban within the state. In June 2023 Governor Newsom personally responded to reports that Temecula School District, outside of San Diego, had blocked a school textbook due to its mention of Harvey Milk, the country’s first openly gay elected official. In a statement, Newsom said, “In the Golden State, our kids have the freedom to learn—and there are consequences for denying that freedom. California is closely watching the actions of malicious actors seeking to ban books, whitewash history, and demonize the LGBTQ+ community in Temecula and across the state. If the law is violated, there will be repercussions.”⁹⁴ Following on the heels of the governor’s statement, the California Department of Education announced it was investigating the school district’s curriculum decision, presumably for potential violations of the state’s Fair, Accurate, Inclusive, and Respectful (FAIR) Education Act.⁹⁵ The school district, facing this pressure, ended up reversing its decision and re-allowing the textbook, though observers noted the board was notably silent about whether it supported the teaching of a section containing information on Harvey Milk.⁹⁶

Anatomy of a Law

AB 1078⁹⁷ does the following:

Prohibits any school board from refusing to approve or prohibiting an already approved textbook on the basis that it includes “a study of the role and contributions of any individual or group consistent with the requirements” of California law or that it “contains inclusive and diverse perspectives.” Declares that any such action constitutes unlawful discrimination.
Requires that schools and governing boards include only instructional materials that, in their determination, accurately portray the cultural and racial diversity of our society, including gender expression and a wide range of ethnicities, religions, and other characteristics. Existing law already required a version of this; this bill expands the categories to be more inclusive.
Provides additional oversight of local decision-makers, and streamlines the process for a county superintendent to purchase books and for the state superintendent to act if they find students do not have sufficient access to textbooks/curricula.
Requires schools to reimburse the state for materials purchased to compensate for their noncompliance with the law.
Sanctions school districts that violate these provisions and do not remedy access to textbooks and materials under the state-funding formula.

The state education department is tasked with creating guidelines for implementing AB 1078, likely including specific procedures to be followed if curricula are removed, by July of 2025.⁹⁸

Analysis

California should be commended for calling the current barrage of book bans nationwide what it is: censorship and discrimination. It is admirable and appropriate that Attorney General Bonta, Governor Newsom, and State Superintendent Thurmond have made clear that local school boards cannot use their discretion to censor content in curricula or school libraries. Students have a right to receive information under the First Amendment, and this bill codifies that right and places it within the ambit of California’s broad free expression protections. The law goes beyond virtue signaling—it also provides a model for affirming that educational gag orders (EGOs) and book bans raise First and Fourteenth Amendment concerns.

However, PEN America remains cautious about the potential impact of one aspect of the law: the provision that specifies that school districts found in violation of this law, and which do not act to remedy it, will be penalized through financial penalties. In general, PEN America is wary of putting in place penalties that might undercut funding for public schools and thus inadvertently harm educators and students.

In this case, California’s regulatory agency would have a big role to play in how the penalty provisions of this bill would be formulated. Regulators should design regulations that are as protective of school funding as possible, ensuring that funding can be both difficult to lose and easy to regain. The fiscal penalties in the California legislation are unlikely to have a substantial impact on the ability of students in the affected districts to access accurate and inclusive information because of California’s demonstrated commitment to funding public education and because the funds withheld are discretionary funds meant to be used to purchase inclusive instructional materials that conform to state standards. The penalty only goes into effect once the district has proven a complete unwillingness to comply with the law (and thus unwillingness to use the withheld funds as they are intended to be used). Such provisions go a fair way towards minimizing any potential negatives of the bill.

For some book banning advocates, the collapse of public schools is a consequence to be embraced, not avoided. It is unwise to call the bluff of such educational arsonists.

The California Effect

California’s Anti–Book Banning bill comes on the heels of Illinois’s Anti–Book Banning Law, the first such law to be passed in the country.⁹⁹ Similar policies have been proposed in New Jersey and Rhode Island, while legislators in New York have proposed amending the state’s education law to better enshrine protections for librarians.¹⁰⁰ At first glance, it may seem wise to give teeth to these anti–book banning proposals, to better incentivize school districts to comply. However, states that are seeking to replicate this legislation should give substantial thought as to how they structure such provisions, as without appropriate design such provisions may play right into book banners’ hands.

In the past year, we have witnessed taxpayers and government officials in places like Michigan, Arkansas, and Texas willingly cut funding and shut down–or attempt to shut down–libraries, rather than allow them to operate without ideologically-driven book bans in place.¹⁰¹ We have also seen elected officials in Missouri attempt to completely defund their state’s public library system in retaliation for a legal challenge against the state’s own book banning law.¹⁰² This points to an uncomfortable but important truth regarding these bills: that some school boards may not blanche at the threat of losing funding. But those who are punished from loss of funding will not be these local politicians—it will be school children and community members.

This danger is particularly acute because some of those engaged in book banning efforts are doing so in part to water down or undermine the public school system. Chris Rufo, the think-tanker who has been a leading voice in promoting the anti–Critical Race Theory moral panic that has driven many book bans, has revealed that his ultimate goal is a fundamental shift of public education to the “school choice” model, saying in an April 2022 speech that “to get universal school choice you really need to operate from a premise of universal public school distrust.”¹⁰³

The movement to ban books has seemingly proved an effective vehicle for undermining trust in public schools among Republican voters. In 2022 half of Republicans surveyed in Gallup polling said they had little to no confidence in public schools.¹⁰⁴ In February 2022, the Heritage Foundation made the connection explicit, writing, “It is time for the school choice movement to embrace the culture war . . . Advocacy groups would be foolish not to promote choice as a solution that can connect large majorities of parents with schools that align with their values—especially when public schools are not meeting their needs.”¹⁰⁵ The unspoken corollary is that the more public schools are seen as failing, the more popular school choice will be.

If other states adopt similar regulations to the California bill, they should be wary of adopting similar fiscal penalties, unless they ensure that they have safeguards in place to guarantee sufficient funding in instances of violation. For some book banning advocates, the collapse of public schools is a consequence to be embraced, not avoided. It is unwise to call the bluff of such educational arsonists.

DEIA¹⁰⁶ Mandates at California Community Colleges

Under Governor Newsom, California has billed itself as a leading state in charting a course toward greater racial equity. In 2021 Newsom launched the Commission on the State of Hate to better document and make policy recommendations regarding hate crimes in the state. In 2022 Newsom signed an executive order directing state agencies and departments to proactively incorporate equity considerations into their mission, policies, and practices. That year he also established the state’s Racial Equity Commission, a body charged with developing a Racial Equity Framework for the state. This is in addition to a slew of laws that include equity as their focus.

As PEN America has long stated, diversity, equity, inclusion, and accessibility (DEIA) work and campus free expression can and should coexist at colleges and universities.¹⁰⁷ But certain DEIA mandates do raise the possibility of infringing upon academic freedom. One of California’s recent efforts in this regard gives cause for concern. In March 2023 the Board of Governors of California’s community college system released a new DEIA policy mandating new rules for how community colleges would evaluate the job performance of their professors through a DEIA lens. The new policy would require community college professors to incorporate principles connected with a specific set of anti-racist ideas into their teaching, and their job performance evaluations would incorporate assessments of the professors’ commitment to those principles.¹⁰⁸

Requirements include that faculty “demonstrate an ongoing awareness and recognition of racial, social, and cultural identities with fluency regarding their relevance in creating structures of oppression and marginalization,” “develop and implement a pedagogy and/or curriculum that promotes a race-conscious and intersectional lens,” and “participate in a continuous cycle of self-assessment of one’s growth and commitment to DEI and acknowledgement of any internalized personal biases and racial superiority or inferiority.”¹⁰⁹ While the policy itself presents these specific concepts as a guideline, a letter from the Chancellor’s office regarding their implementation describes them as a “minimum standard” and a “baseline” for faculty and other employees.¹¹⁰

In August 2023, the free speech organization the Foundation for Individual Rights and Expression (FIRE) brought suit against California, representing six California community college professors. Each of these six professors alleges that they would be required to change their teaching because of these new regulations, in ways that they fear will water down or distort their curriculum.¹¹¹

In a separate case filed in June, Johnson v. Watkin, a California community college professor alleged he was wrongly targeted for his rejection of the “official political ideology” encapsulated by the new DEIA standards. On November 15, 2023, a federal magistrate tasked with reviewing the case formally recommended that the new DEIA standards be enjoined. The courts are likely to make a preliminary judgment on the constitutionality of this new policy in the coming days.¹¹²

There is a difference between protecting a school’s or faculty member’s right to include DEI programming, and mandating that they do so, especially in higher education. While the need for diversity, equity, and inclusion in our schools is—or rather, should be—uncontroversial, California’s efforts to impose specific DEI concepts and pedagogy in every community college classroom rely on definitions and regulatory requirements that are far more concerning when introduced into the academic sphere.

Analysis

As PEN America has repeatedly documented, the prerogative of schools and libraries to teach diverse perspectives is under national attack, and this context informs the adoption of these regulations by California’s community college system.¹¹³

But there is a difference between protecting a school’s or faculty member’s right to include DEI programming, and mandating that they do so, especially in higher education. While the need for diversity, equity, and inclusion in our schools is—or rather, should be—uncontroversial, California’s efforts to impose specific DEI concepts and pedagogy in every community college classroom rely on definitions and regulatory requirements that are far more concerning when introduced into the academic sphere.

Among the regulations is the rule that a professor will be judged in their professional performance by how successfully that professor “promotes and incorporates the ideas and approaches above into their pedagogy.” But a university system requiring a professor to adopt specific pedagogical ideas is an imposition of the state system’s viewpoint over disciplinary knowledge and the academic freedom of the professor.

And while the government can easily offer guidance on what constitutes good examples of teaching anti-racism, there is no such easy indication of what constitutes the precise borders of failing to teach anti-racist pedagogy.

And in the absence of clarity, self-censorship flourishes by professors who may fear the consequences of a negative professional evaluation. It is for this reason that we have marked this regulation as an educational gag order in our latest evaluation of America’s Censored Classrooms, our yearly tracker of educational gag orders and other legislative efforts to restrict the freedom to learn and teach, which was released November 2023.

As we argued in that report:

It is easy to see how this language threatens the academic freedom and free speech of faculty. To be considered for tenure, must a biology professor now seek out ways to promote “a race-conscious and intersectional lens” in the classroom? How and to whom must faculty now demonstrate that they recognize their own “biases” and feelings of “racial superiority or inferiority”? Are faculty now required to affirm, as a condition of their employment, that they and every other societal structure are racist? If this is the “baseline” for faculty to demonstrate, what room is there for them to teach a range of theoretical frameworks or interpretations? What space is there for disagreement or even debate over what is in effect a highly prescriptive and ideological directive about these matters?

Experience in other states suggests that these are far from baseless hypotheticals. Indeed, we have seen similarly vague language chill academic speech in similar ways following the passage of educational gag orders in Florida, Iowa, and Oklahoma .… the criteria for California community college faculty under this policy are highly ideological and specific and presented as a “minimum standard.” As such, they represent a major threat to the academic freedom and free speech of faculty—one of the most censorious educational gag orders we have seen, and the only one to become law or policy in a state where Democrats control all branches of state government.¹¹⁴

The California Effect

As we additionally noted in our most recent version of America’s Censored Classrooms, these new regulations go far beyond the DEI policies found in any other public college or university in the country. These criteria for community college faculty are ideological, specific, and significant, constituting what the Chancellor’s office calls the “minimum standard” necessary for employment. PEN America has identified these regulations as an educational gag order—the only one to become law or policy in a blue state. As such, this policy represents a dangerous precedent, one that should be called out as the wrong way forward for states looking to promote diversity, equity, inclusion, and accessibility at their public academies.¹¹⁵

As a large and influential state, California has increasingly served as a laboratory for state-level policy. This “California Effect” means that California policy influences that of other states, even standing as a potential national model. That is why it is all the more important to identify the free expression implications of these policies: what works, what doesn’t, which policies should be celebrated, which should be changed, and which should be jettisoned.

Conclusion

This report is intended to evaluate how California’s governor and legislature have shaped the space for freedom of expression in the state over the past few years. In some places, the record has been unambiguously positive: the state’s efforts to decriminalize artist expression and protect journalists covering protests should be not only lauded but should serve as models for other states.

In other areas the record is more mixed, or at least deserving of continued evaluation. This is particularly the case with regard to California’s proposals for digital regulation. The California Social Media Transparency Bill and Age-Appropriate Design Code Act both represent substantial new regulation that, in their current state, would have a net negative impact on free expression online. California’s anti-book banning bill may offer a blueprint for states looking to safeguard access to information in schools and libraries–but states with a different political landscape must take care to ensure that enforcement mechanisms do not harm those they aim to help. Meanwhile, California’s DEIA mandates for community colleges represent a laudable goal, but the wrong approach, placing new constrictions on academic autonomy.

For further analysis of several of the thematic areas examined in this report, we refer the reader to PEN America’s other reports, below.

PEN America has conducted further analysis of educational gag orders and related restrictions on free expression in the academic sphere, in the following reports.

America’s Censored Classrooms 2023: Lawmakers Shift Strategies as Resistance Rises (November 2023)
School Book Bans: The Mounting Pressure to Censor (September 2023)
Educational Intimidation Bills: How “Parents’ Rights” Legislation Undermines the Freedom to Learn (August 2023)
Banned in the USA: State Laws Supercharge Book Suppression in Schools (April 2023)
Banned in the USA: The Growing Movement to Censor Books in Schools (September 2022)
America’s Censored Classrooms 2022 (August 2022)
Banned in the USA: Rising School Book Bans Threaten Free Expression and Students’ First Amendment Rights (April 2022)
Educational Gag Orders: Legislative Restrictions on the Freedom to Read, Learn, and Teach (November 2021)

PEN America has conducted further analysis of freedom of expression and related concerns in the digital sphere, in the following reports.

PEN America has conducted further analysis of free expression and the news ecosystem, including addressing extremism and disinformation, in the following reports.

Building Resilience: Identifying Community Solutions to Targeted Disinformation (July 2023)
Hate in the Headlines: Journalism & the Challenge of Extremism (November 2022)
Impact Report: Evaluating PEN America’s Media Literacy Program (with Stanford Social Media Lab) (September 2022)
Hard News: Journalists and the Threat of Disinformation (April 2022)

PEN America has conducted further analysis of freedom of expression and the right to protest, in the following reports.

Closing Ranks: State Legislators Deepen Assaults on the Right to Protest (April 2021)
Arresting Dissent: Legislative Restrictions on the Right to Protest (May 2020)

For more, including our relevant press statements, case advocacy, and literary programming, the reader is encouraged to familiarize themselves with our work at www.pen.org

Acknowledgments

This report was written by Ryan Howzell, lead author, with co-authorship by James Tager. Summer Lopez, Chief Program Office, Free Expression, Nadine Farid Johnson, Managing Director, PEN America Washington, Shannon Jankowski, Interim Sy Syms Director for U.S. Free Expression Programs, Kate Ruane, former Sy Syms Director for U.S. Free Expression Programs, as well as PEN America’s Free Expression and Education Team reviewed the report and provided strategic guidance. Elly Brinkley and Cheryl Leanza provided additional legal analysis.

PEN America is deeply grateful to Vera Eidelman, Sarah Hinger, Lee Rowland, Emerson Sykes, and Leah Watson, for their expert review and feedback. PEN America would also like to thank the fellows whose research, fact-checking, and proofreading made this report possible: Rhiannon Rashidi and Hannah Rodriguez. The report was edited by Carol Balistreri. Melissa Joskow designed the graphics that accompany the report. Erica Galluscio laid out the report for publication.

Disclosure: PEN America CEO Suzanne Nossel serves on the Meta Oversight Board. This report and its conclusions reflect the views of PEN America alone.

The California Effect

The California Effect

Introduction

Decriminalizing Artistic Expression

Anatomy of a Law

Analysis

The California Effect

Social Media Content and Transparency

California Social Media Transparency Bill (AB 587)

Anatomy of a Law

Analysis

The California Effect

Age-Appropriate Design Code Act

Anatomy of a Law

Analysis

The California Effect

Journalism and Press Freedom

California Journalism Preservation Act

Anatomy of a Bill

Analysis

The California Effect

Journalists and Police Dispersal Orders SB 98

Education

Anti-Book Banning Bill

Anatomy of a Law

Analysis

The California Effect

DEIA106Diversity, Equity, Inclusion, and Accessibility. See https://www.cccco.edu/-/media/CCCCO-Website/Files/dei/deia-glossay-of-terms-a11y.pdf Mandates at California Community Colleges

Analysis

The California Effect

Conclusion

Acknowledgments

DEIA¹⁰⁶ Mandates at California Community Colleges