Analysis | Judges air free-speech concerns over California’s child online safety law (2024)

The U.S. Court of Appeals for the 9th Circuit in San Francisco heard arguments over a tech industry challenge to the California Age-Appropriate Design Code (AADC), a bipartisan law passed in 2022.

The law would have required digital platforms to start by this month vetting whether their products risk harming children and applying stricter privacy settings by default. It’s one of the most significant such state laws passed to date and has since spawned copycats.

Tech trade group NetChoice — which counts Meta, Google and Amazon as members — sued over the law and notched a victory last year when a federal judge blocked the act after finding that it probably violates the Constitution. (Amazon founder Jeff Bezos owns The Washington Post.)

Federal judges hearing the state’s appeal of that ruling appeared inclined to agree that core aspects of the law run afoul of the First Amendment by regulating protected speech.

The three-panel court repeatedly challenged Deputy Attorney General Kristin Liska to explain why California’s requirement that companies conduct “data protection impact assessments” did not infringe on free speech protections. The law would force companies to inspect whether the design of their services could expose children to harmful content before rolling them out.

Judge Milan D. Smith Jr., one of the judges presiding over the appeal, said he was “troubled” that the law requires companies to “make a determination” about what constitutes content that could be harmful to children.

“It seems to me that when you are asking them to make that [call] it’s compelled speech and you do bring in the First Amendment and probably at a strict scrutiny level,” he said.

Liska pushed back, arguing that the law focuses on how companies collect and use data in ways that pose harm to children, including collecting information to target dangerous behavioral ads.

But the judges rebuffed the distinction. “Seriously, I mean, come on, data is just a report of numbers … You’re requiring them to make a determination” on content, Smith said. NetChoice’s Robert Corn-Revere argued the law “is a speech regulation masquerading as a privacy law.”

How the appeals court rules, however, could come down to a legal technicality.

While the judges seemed inclined to find the law’s central safety provisions unconstitutional, they left open the possibility that more narrow requirements in the law may not be, including rules forcing companies to set stronger default privacy settings for children.

The judges’ decision, then, could rest on whether they believe they can sever and rule on individual aspects of the law, or whether it would need to be kicked back to lower courts.

Laskin argued that “the remainder of the law would remain enforceable” even if you struck down the impact assessment provisions, but Corn-Revere said that “the law would be very hard to understand or apply if the … provision were knocked out.” At one point, Judge Mark J. Bennett raised the specter of referring the “severability question” to the California Supreme Court.

The U.S. Supreme Court, the appeals court judges noted Wednesday, recently sent a case over separate social media laws in Texas and Florida back to lower courts after finding they did not conduct a proper First Amendment analysis. That path could extend the legal battle.

Paring back the law to focus largely only on child privacy — an issue already governed by federal law — would mark a major defeat for children’s safety advocates pushing to curtail what they view as platforms’ addictive design features.

Tech Justice Law Project executive director Meetali Jain, whose legal group backs the law, said the case could show whether courts’ First Amendment interpretations have “run amok” or whether they will engage in more “nuanced” readings of how it applies to child safety online.

“Today’s hearing ripped the mask off California’s AADC, further exposing the state’s attempt to censor the internet,” said Chris Marchese, NetChoice’s litigation center director.

Government scanner

Inside the industry

Competition watch

Daybook

Before you log off

That’s all for today — thank you so much for joining us! Make sure to tell others to subscribe to Tech Brief. Get in touch with Cristiano (via email or social media) and Will (via email or social media) for tips, feedback or greetings!