Court Says X Must Disclose Its Content Moderation Policies

New York law requires social media companies to disclose certain aspects of their content-moderation policies. The law requires platforms to post their terms of service and to submit to the New York Attorney General a report that includes, among other things, a description of its content policies with respect to hate speech and racism, extremism and radicalization, disinformation and misinformation, harassment, and foreign political interference. 

X Corp. (formerly known as Twitter) sued the New York Attorney General, alleging, among other things, that the state's reporting requirement violates the First Amendment.

Under U.S. Supreme Court precedent, when “commercial speech” is involved, “regulations requiring commercial disclosure of purely factual and uncontroversial information about the terms through which services will be available may survive constitutional scrutiny if they are reasonably related to the State's interest in preventing deception of consumers and are not unjustified or unduly burdensome.” That's because, the “mandated disclosure of accurate, factual, commercial information does not offend the core First Amendment values of promoting efficient exchange of information or protecting individual liberty interest” and instead promotes and protects the “robust and free flow of accurate information."

So, the key question the court had to consider was whether New York law is regulating “commercial speech.” 

In order to distinguish commercial speech from noncommercial speech, courts consider “the nature of the speech taken as a whole and the effect of the compelled statement thereon.” While commercial speech is often thought of as speech which proposes nothing more than a commercial transaction, “even speech which does not itself propose a commercial transaction may still be deemed commercial based upon a number of factors, including whether the speech is an advertisement, whether the speech references a specific product, and whether the speaker has an economic motive.” 

Here, a federal court in New York held that only commercial speech is involved here. The court explained that requiring a social media platform to disclose its content moderation policies is sufficiently connected to the terms of the commercial transaction between the platforms and its users to be “commercial speech.” The result would be different, the court said, if the platforms were also required to disclose its rationale for having those specific policies.

The fact that a platform's content moderation policies may be controversial does not change the conclusion. The court wrote, “After all, speech does not cease to be commercial merely because it alludes to a matter of public debate.” 

It's going to be interesting to watch how the law in this area develops. Will platforms – and other media – be required to be more transparent about their decision-making about what types of advertising and other content that they run? It sure seems that way. As the court explained, “Businesses may not always want to share every detail about the products or services they offer. But when the government requires those businesses to speak truthfully about their offerings, the First Amendment typically allows for that kind of disclosure requirement.”

X Corp. v. Letitia James, 2026 WL 2516965 (S.D.N.Y. 2026).