CN
02 Apr 2025

(CN) - Whether a California law aimed at protecting children from social media addiction will take effect is in the hands of the Ninth Circuit Court of Appeals panel as it weighs whether the law violates free speech rights. 

"Website users have a constitutional right to access protected speech without parental consent or age gates," Scott Keller, attorney for the Washington, D.C.-based Lehotsky Keller Cohn firm representing NetChoice, said. 

NetChoice - a tech lobbying group representing members like Amazon, Google, Lyft, Meta, PayPal, Snap, Waymo and X, formerly Twitter - sued California in November, accusing the state of censoring lawful speech and expression rather than protecting kids.

Senate Bill 976, also known as the Protecting Our Kids from Social Media Addiction Act, prevents social media platforms from knowingly providing an addictive feed to minors without parental consent. The law, passed in September, was set to take effect on Feb. 1, but the Ninth Circuit granted an injunction in late January blocking the state from enforcing it pending the appeal.

Because each company NetChoice represents has a different algorithm and way of developing personalized feeds, U.S. Circuit Judge Ryan Nelson questioned whether the lobbying group has standing to bring the challenge. 

"I don't understand how the Constitution couldn't, or wouldn't, apply differently based on those personalized feed algorithms," the Trump appointee said.

In response, Keller argued that those differences don't change the nature of the First Amendment claim, which asserts that individualized feeds are protected as distinctive, expressive offerings. Plus, the algorithms are used to further the companies' publicly available editorial policies and community guidelines.

Nelson also questioned the merit of NetChoice's facial challenge to the law. 

"You have to show that it's unconstitutional in all circumstances, and I don't know how you even do that," Nelson said. 

To NetChoice, the standard is clearly set in Moody v. NetChoice, a case from July 2024 in which the Supreme Court tossed an appellate court's review of a facial First Amendment challenge to a similar law in Florida and ordered the court to try again. As a trade association and lobbyist, NetChoice has steadily climbed in scope and influence over the last decade and currently has six active lawsuits over state-level internet regulations.

"What we're talking about are the exact personalized, individualized, curated feeds that Moody said are distinctive, expressive offerings that the First Amendment protects," Keller argued. 

No matter what particular website is at issue, the facial challenge remains the same, Keller argued. 

"Football videos versus cat videos versus political speech, I mean, we're talking about billions of posts of fully protected speech," Keller said. "So, regardless of how an algorithm operates, we can raise a facial challenge."

Keller also argued that the law is underinclusive in how it discerns between website-generated content compared to third-party or user content.  

"It doesn't include all personalized feeds. Spotify or Hulu making personalized recommendations, that's fine, but yet when YouTube wants to present very, very similar content videos, it can't," Keller said. 

Content aside, U.S. Circuit Judge William Fletcher implored NetChoice to reflect on whether it was missing a key consideration within the law: think of the children. 

"So far, we've been talking about this without mentioning the fact we're talking about kids," the Bill Clinton appointee said. "Is the analysis affected by the fact that we're talking about kids rather than adults?"

Simply put, NetChoice argues that no, it is not affected. 

"We wouldn't say that government can ban Saturday morning cartoons simply because that they think that they're too addictive," Keller argued, adding that the labeling of speech as addictive is another issue. 

"You sound like the tobacco companies," Nelson 

Keller rejected that characterization, arguing that the case is about protected speech rather than a carcinogen. 

"It might be actually worse than a carcinogen. I mean, what we're doing to the future generation. I know that that's not an issue here, but I mean, we've got an entire generation. There's a problem here," Nelson said.

The state asserts that its law doesn't restrict minors' access to content and merely addresses the harm of addictive features to minors.

Nelson questioned Christopher Kissel, deputy attorney general, about the nature of the law, noting that it distinguishes between commercial transactions and other content.

"You can go to Facebook Marketplace, and you can get addicted to Facebook Marketplace and spend all your parents' money, but you can't get addicted to kitten videos on YouTube," Nelson said.

Kissel argued that the distinction isn't based on content or ideas, but Nelson wasn't convinced.

"If California had come in and said, 'All feeds, regardless of the nature, are prohibited,' I think California would be on much more solid footing," Nelson said. "It's the carve-outs that create a problem here."

But Kissel argued that those carve-outs bolster the state's position because they show the effort to narrowly tailor the law to only sources causing harm.

"It really just shows that what the legislature was doing was being attentive to the particular harm," Kissel said.

Kissel argued that the law gives parents a tool to restrict access to social media or the internet and control the most addictive aspects. Plus, California's law is careful to make sure content is still available to children and they can still use the platforms, unlike similar laws in other states that are more restrictive, Kissel argued.

"It really is, I think, the most hands-off approach that the government can take while being proactive about addressing this problem," Kissel said.

Kissel urged the court to lift the preliminary injunction, even if it determines some portions of the law are invalid.

"Every day that the state is not able to enforce those provisions is a day that this state is not able to address these important harms," Kissel said.

On rebuttal, Keller argued that the NetChoice member websites already provide parents with tools to restrict and control how their children interact online.

"NetChoice members' websites are trying to protect minors," Keller said. Keller asked the court to keep the injunction in place while the case proceeds.

The Ninth Circuit panel, which also included Clinton appointee U.S. Circuit Judge Michael Hawkins, did not indicate when it would rule.

Source: Courthouse News Service