The Ninth Circuit Court of Appeals — located in San Francisco — partially struck down California’s Age-Appropriate Design Code Act (“CAADCA”). See Cal. Civ. Code §§ 1798.99.28 et seq. The CAADCA was passed in 2022 by the California State Assembly. The CAADCA was enacted to protect the online privacy of children — persons under the age of 18 — and to regulate how online products are designed where such are likely to be accessed by children. California Gov. Gavin Newsom described the Act as a “… nation-leading law to shield kids from predatory practices.”
Shortly after becoming law, the CAADCA was challenged in federal court by a collection of media and online companies. The basic legal challenge was based on First Amendment free speech principles. At the lower level, the federal court agreed and imposed an injunction against the enforcement of any provision in the CAADCA. The case was appealed to the Ninth Circuit Court of Appeals, and now, the appellate court has upheld the lower court in part and reversed it in part. See NetChoice, LLC. v. Bonta, Case No. 23-2969 (9th Cir. 2024). The appellate court agreed that certain provisions were likely to be unconstitutional, including the following CAADCA provisions:
- Content moderation provisions
- Requirements that companies mitigate risks related to harmful content
- Requirements that companies prioritize content deemed to be in the “best interests” of children
- Data Protection Impact Assessment reports requirements
- And more
However, without directly holding, the appellate court indicated that certain provisions of the CAADCA might not be unconstitutional. These included restrictions on the collection, use, and sale of children’s personal and geolocation data.
As noted, the lower court blocked enforcement of the entirety of the CAADCA. Since the appellate court only partially agreed with the lower court, certain parts of the lower court’s decision were overturned, and the whole case was returned to the lower court for further proceedings. In particular, the appellate court told the lower court to fully evaluate each provision and to determine severability. Severability is a legal concept where, depending on how a statute is written, certain parts of a statute can be severed from others so that part of a statute can still be enforced while other parts can be declared unconstitutional. If a statute cannot be separated in such a manner, then declaring one part to be unconstitutional means the whole statute is unenforceable.
Despite claims of partial victory by proponents of the CAADCA, this case is yet another First Amendment setback for those wanting internet companies to protect users from dangerous or harmful content. Earlier in 2024, the U.S. Supreme Court held that internet companies are engaged in First-Amendment-protected speech when they moderate content — that is, when they choose to remove users or posts, deprioritize content in viewers’ feeds or search results, or punish breaches of their community standards. Moody v. NetChoice, LLC, 144 S. Ct. 2383 (2024). Further, on First Amendment free speech grounds, the same Ninth Circuit Court of Appeals recently struck down California’s general content moderation law — called Assembly Bill 587. That law required social media companies to prepare and provide reports to the California Attorney General about the media company’s content moderation policies and practices. These reports were required to describe how the company defined and moderated hate speech, racism, extremism, radicalization, disinformation, misinformation, harassment, and foreign political interference. Content moderation reports were also required to provide a large amount of statistical information. The Ninth Circuit appellate court struck down these provisions as forms of coerced speech that violated free speech principles. An important thread running through these content moderation cases is that First Amendment strict scrutiny is the legal standard that must be applied.
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