California is among the states leading the way on creating legislation designed to protect children from the harmful effects of being targeted consumers of social media. In the middle of last year, the California legislature unanimously passed the California Age-Appropriate Design Code Act (CAADCA), a “first-in-the-nation law aimed at safeguarding children online.”
The law places the burden on social media and other internet platforms to put the highest privacy protection in place for children (or alternatively, across the board for all users at the platform’s digression). Additionally, the law prohibits the use of algorithms and features which the platform knows, or should know, will cause users to experience addiction or act in other ways harmful to themselves; however, in September of last year, the law was preliminarily enjoined.
Netchoice, LLC, a national trade organization aimed to promote and preserve free speech on the internet, with members such as Google, Amazon, Meta, and TikTok, filed suit in attack of the CAADCA. Netchoice sought a preliminary injunction, claiming the law violated several constitutional provisions and was preempted by federal law. Nevertheless, the District Court for the Northern District of California used only one ground to grant the preliminary injunction-the First Amendment. Citing Supreme Court Decision, Sorrell v. IMS Health Inc., 564
U.S. 552, the Court found that the CAADCA regulates protected speech, because it “limit[s] the availability and use of information by certain speakers for certain purposes,” which triggers First Amendment scrutiny.
Although the Court only used intermediate scrutiny, and sympathized greatly with California’s important interest in protecting children from the very real harm of social media, it found Netchoice would be likely to prevail on the merits regarding almost every provision of the CAADCA.
Some provisions were “substantially excessive” means of achieving child protection, according to the Court, and in the case of other provisions, the Court said the State failed to show the means would achieve the purpose of protecting children.
One month after the District Court granted the preliminary injunction, Rob Bonta, the California Attorney General, filed a notice of appeal. He is adamant that “the court got this one wrong,” and urges the Ninth Circuit to overturn the decision. “As the People’s Attorney, and as a proud father of three, I won’t stand idly by,” said Bonta.
California’s CAADCA may be the most aggressive of its kind yet, but it is not alone in its attempt to put a collar around the harm social media has on children. Florida, Texas, Arkansas, Louisiana, Ohio, and Utah have passed laws regulating social media’s interactions with children in some way. Likewise, California is not the only state facing First Amendment issues. Ohio’s social media child protection law was also enjoined on First Amendment grounds early this year.
The need for regulation of online platforms that aim to profit from practices that harm children is becoming well accepted, and the push to enact these regulations is sweeping the country, but the First Amendment remains a very real roadblock. The Ninth Circuit’s treatment of the CAADCA’s preliminary injunction could be telling on the fate of other such laws around the country.
CITATIONS
• “Attorney General Bonta Continues Defense of California’s Age-Appropriate
Design Code Act.” Rob Bonta, Attorney General, 13 Dec. 2023.
• King, Danae. Court Blocks Ohio Law Requiring Parental Consent for Tik Tok, Instagram. What It Means, The Columbus Dispatch, 9 Jan. 2024.
• NetChoice, LLC v. Bonta, 22-cv-08861-BLF (N.D. Cal. Sep. 18, 2023)
• Rieper, Max. “More States Enact Comprehensive Privacy Legislation, plus Experiment with Broadband, Social Media Regulation, Youth Safety, and Ai.” MultiState, 7 Nov. 2023.
• The California Age-Appropriate Design Code Act, S.B. 680, California Legislature- 2023-2024 Regular Session (2023) https://leginfo.legislature.ca
•gov/faces/billTextClient.xhtml?bill_id=202320240SB680
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