NetChoice Sues California Once Again To Block Its Misguided ‘Social Media Addiction’ Bill

Free Speech

from the slow-down-california,-and-read-the-constitution dept

Earlier this year, California passed SB 976, yet another terrible and obviously unconstitutional bill with the moral panicky title “Protecting Our Kids from Social Media Addiction Act.” The law restricts minors’ access to social media and imposes burdensome requirements on platforms. It is the latest in a string of misguided attempts by California lawmakers to regulate online speech “for the children.” And like its predecessors, it is destined to fail a court challenge on First Amendment grounds.

The bill’s sponsor, Senator Nancy Skinner, has a history of relying on junk science and misrepresenting research to justify her moral panic over social media. Last year, in pushing for a similar bill, Skinner made blatantly false claims based on her misreading of already misleading studies. It seems facts take a backseat when there’s a “think of the children!” narrative to push.

The law builds on the Age Appropriate Design Code, without acknowledging that much of that law was deemed unconstitutional by an appeals court earlier this year (after being found similarly unconstitutional by the district court last year). This bill, like a similar one in New York, assumes (falsely and without any evidence) that “algorithms” are addictive.

As we just recently explained, if you understand the history of the internet, algorithms have long played an important role in making the internet usable. The idea that they’re “addictive” has no basis in reality. But the law insists otherwise. It would then ban these “addictive algorithms” if a website knows a user is a minor. It also has restrictions on when notifications can be sent to a “known” minor (basically no notifications during school hours or late at night).

There’s more, but those are the basics.

NetChoice stepped up and sued to block this law from going into effect.

California is again attempting to unconstitutionally regulate minors’ access to protected online speech—impairing adults’ access along the way. The restrictions imposed by California Senate Bill 976 (“Act” or “SB976”) violate bedrock principles of constitutional law and precedent from across the nation. As the United States Supreme Court has repeatedly held, “minors are entitled to a significant measure of First Amendment protection.” Brown v. Ent. Merchs. Ass’n, 564 U.S. 786, 794 (2011) (cleaned up) (quoting Erznoznik v. Jacksonville, 422 U.S. 205, 212-13 (1975)). And the government may not impede adults’ access to speech in its efforts to regulate what it deems acceptable for minors. Ashcroft v. ACLU, 542 U.S. 656, 667 (2004); Reno v. ACLU, 521 U.S. 844, 882 (1997). These principles apply with equal force online: Governments cannot “regulate [‘social media’] free of the First Amendment’s restraints.” Moody v. NetChoice, LLC, 144 S. Ct. 2383, 2399 (2024).

That is why courts across the country have enjoined similar state laws restricting minors’ access to online speech. NetChoice, LLC v. Reyes, 2024 WL 4135626 (D. Utah Sept. 10, 2024) (enjoining age-assurance, parental-consent, and notifications-limiting law); Comput. & Commc’n Indus. Ass’n v. Paxton, 2024 WL 4051786 (W.D. Tex. Aug. 30, 2024) (“CCIA”) (enjoining law requiring filtering and monitoring of certain content-based categories of speech on minors’ accounts); NetChoice, LLC v. Fitch, 2024 WL 3276409 (S.D. Miss. July 1, 2024) (enjoining ageverification and parental-consent law); NetChoice, LLC v. Yost, 716 F. Supp. 3d 539 (S.D. Ohio 2024) (enjoining parental-consent law); NetChoice, LLC v. Griffin, 2023 WL 5660155 (W.D. Ark. Aug. 31, 2023) (enjoining age-verification and parental-consent law).

This Court should similarly enjoin Defendant’s enforcement of SB976 against NetChoice members

As we’ve discussed, the politics behind challenging these laws makes it a complex and somewhat fraught process. So I’m glad that NetChoice continues to step up and challenge many of these laws.

The complaint lays out that the parental consent requirements in the bill violate the First Amendment:

The Act’s parental-consent provisions violate the First Amendment. The Act requires that covered websites secure parental consent before allowing minor users to (1) access “feed[s]” of content personalized to individual users, § 27001(a); (2) access personalized feeds for more than one hour per day, § 27002(b)(2); and (3) receive notifications during certain times of day, § 27002(a). Each of these provisions restricts minors’ ability to access protected speech and websites’ ability to engage in protected speech. Accordingly, each violates the First Amendment. The Supreme Court has held that a website’s display of curated, personalized feeds is protected by the First Amendment. Moody, 144 S. Ct. at 2393. And it has also held that governments may not require minors to secure parental consent before accessing or engaging in protected speech. Brown, 564 U.S. at 799;

So too do the age assurance requirements:

The Act’s requirements that websites conduct age assurance to “reasonably determine” whether a user is a minor, §§ 27001(a)(1)(B), 27002(a)(2), 27006(b)-(c), also violate the First Amendment. Reyes, 2024 WL 4135626, at 16 n.169 (enjoining age-assurance requirement); Fitch, 2024 WL 3276409, at 11-12 (enjoining age-verification requirement); Griffin, 2023 WL 5660155, at *17 (same). All individuals, minors and adults alike, must comply with this age-assurance requirement—which would force them to hand over personal information or identification that many are unwilling or unable to provide—as a precondition to accessing and engaging in protected speech. Such requirements chill speech, in violation of the First Amendment. See, e.g., Ashcroft, 542 U.S. at 673; Reno, 521 U.S. at 882.

It also calls out that there’s an exemption for consumer review sites (good work, Yelp lobbyists!), which highlights how the law is targeting specific types of content, which is not allowed under the First Amendment.

California Attorney General Rob Bonta insisted in a statement to GovTech that there are no First Amendment problems with the law:

“SB976 does not regulate speech,” Bonta’s office said in an emailed statement. “The same companies that have committed tremendous resources to design, deploy, and market social media platforms custom-made to keep our kids’ eyes glued to the screen are now attempting to halt California’s efforts to make social media safer for children” the statement added, saying the attorney general’s office would respond in court.

Except he said that about the Age Appropriate Design Code and lost in court. He said that about the Social Media Transparency bill and lost in court. He said that about the recent AI Deepfake law… and lost in court.

See a pattern?

It would be nice if Rob Bonta finally sat down with actual First Amendment lawyers and learned how the First Amendment worked. Perhaps he and Governor Newsom could take that class together so Newsom stops signing these bills into law?

Wouldn’t that be nice?

Filed Under: 1st amendment, addictive feeds, age assurance, algorithms, moral panic, nancy skinner, parental controls, rob bonta, social media, social media addiction
Companies: netchoice