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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:
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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The Ninth Circuit’s decision in NetChoice, LLC v. Bonta, No. 23-2969, is best understood as a procedural remand rather than a final merits ruling. The appellate court did not hold that the CAADCA is unconstitutional in its entirety. It held that the district court — which had issued a blanket preliminary injunction against the whole statute — applied the wrong legal analysis and must re-evaluate each provision individually. Specifically, the Ninth Circuit held that the CAADCA’s content moderation provisions, requirements to mitigate harm from dangerous content, and requirements to prioritize content in children’s “best interests” are likely unconstitutional under the First Amendment because they compel or restrict speech without adequate justification under strict scrutiny.
However, the Ninth Circuit explicitly left open whether the data privacy provisions of the CAADCA — restrictions on collecting, using, and sharing children’s geolocation data and certain categories of personal data — might survive constitutional challenge. Data collection restrictions do not directly regulate the content of speech; they regulate what a company can do with data it collects about its users. Courts have generally applied more lenient First Amendment analysis to commercial data regulation than to content moderation mandates, which is why the Ninth Circuit viewed the data provisions as a more difficult case.
The central legal principle threading through the CAADCA case, the California social media law case (X Corp v. Bonta), and the U.S. Supreme Court’s decision in Moody v. NetChoice is that when the government compels or restricts speech — including through laws that require companies to moderate content or report on their moderation practices — strict scrutiny applies. Strict scrutiny requires that the law serve a compelling government interest and be narrowly tailored to achieve that interest through the least restrictive means available.
This is the highest and most demanding standard of constitutional review. Very few laws survive strict scrutiny, because courts require not just a legitimate goal but a compellingly urgent one, and not just an effective means but the least restrictive means possible. Protecting children from harmful online content is a compelling interest — that part of the test is easy. The difficult part is narrow tailoring: do the CAADCA’s specific requirements accomplish that goal in a way that restricts as little speech as constitutionally possible? The Ninth Circuit concluded that the content moderation provisions and harm-mitigation requirements were not narrowly tailored, because less speech-restrictive alternatives existed.
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