Editor's note: This is a revised version of a story previously published concerning a Dec. 31 ruling from a federal judge over the constitutional challenge to the California law known as SB976. The new version reflects actions taken by the judge in the case on Jan. 2.
A federal judge has blocked the state of California from enforcing the entirety of the state's new law restricting minors' use of social media for 30 days, giving a federal appeals court until Feb. 1 to weigh in on his New Year's Eve ruling declining to fully block the controversial law from taking effect.
U.S. District Judge Edward Davila on Dec. 31 said he would allow California to begin enforcing much of the state's new law restricting minors' use of social media, rejecting, so far, much of the tech industry's claims that the law tramples the constitutional rights of adults in the process.
Edward J. Davila
| cand.uscourts.gov
In that earlier decision, Davila delivered a mixed ruling on the challenge brought against the law, known as SB976, by NetChoice, an association representing the interests of a consortium of tech companies, social media platforms and online marketplaces.
In the ruling, Davila sided with NetChoice on only two points.
First, the judge granted NetChoice's request to prevent California state officials from requiring all social media companies to provide the state with data on the number of people under the age of 18 using their products.
And the judge granted NetChoice's request for an injunction preventing the state from requiring social media companies to cease delivering push notifications to known minor users between the hours of midnight and 6 a.m.
The judge, however, overall said NetChoice thus far had fallen short of demonstrating that SB976 unconstitutionally violates people's First Amendment rights by seeking to force social media companies to identify young users and then restrict those users' access to a potentially broad range of video, images and other content on social media platforms.
NetChoice filed the lawsuit on Nov. 12 in San Francisco federal court, calling SB976 "a dangerous precedent that undermines core principles of free speech and privacy for all Californians."
California Attorney General Rob Bonta and other state officials, however, have said the law is needed to protect children's mental health and wellbeing against "addictive algorithmic feeds, notifications and other addictive design features to coerce children and teens to spend hours and hours on their platforms."
The alleged addictive properties of social media and the alleged algorithms and features allegedly erected by social media companies to enhance those addictive properties have stood at the center of a growing mountain of lawsuits filed by states, school systems, individuals and many others against the owners of the Facebook, Instagram, TikTok and SnapChat platforms, among others.
While that litigation continues, California state lawmakers at Bonta's request to enact SB976, which supporters called the Protecting Our Kids from Social Media Addiction Act.
Under the law, social media platform operators would be required to obtain clear consent from parents for any users identified as being under the age of 18, or social media companies could be compelled to limit those users to "an algorithmically determined feed of content" supposedly less addictive for young users.
The law would also force social media companies to establish default settings for known or suspected minor users to "limit the child's access to any addictive feed" from a platform to one hour per day, unless a parent or guardian says otherwise; to "limit the visibility of likes and other engagement metrics that contribute to an addictive social media experience;" and "select a private mode, where only the user's connections can view or respond to content posted by the child," among other rules.
The law would require social media companies to require all users to prove they are not minors to avoid such restrictions.
The law would also impose a host of other responsibilities on social media companies, including requiring them to track how many users under the age of 18 use their products and then report that data annually to the state of California.
While Bonta and other supporters of the legislation say it is needed to protect children online, NetChoice and social media companies said the law is merely an attempt by the state of California to continue its efforts to restrict speech online.
"SB 976 forces the online companies covered to create significant barriers for Californians, restricting their access to lawful content unless they hand over sensitive, personal documentation. The law’s carve-outs are less about online safety and more about establishing a digital surveillance state, censoring free speech and targeting certain businesses," NetChoice said in a release when it filed suit.
They asserted the age verification steps required by the law amount to an unconstitutional violation of everyone's rights to speak online and access the content they wish.
They sought a court order blocking the law from taking effect on Jan. 1.
In his ruling, however, Judge Davila said he did not believe a court could yet determine if NetChoice could yet prevail on its claims that the law is unconstitutional.
Davila noted the U.S. Supreme Court has so far refused to bar governments from restricting the abilities of minors' online and enact supposed protections.
In this case, Davila said he believed he and other judges will need to wait to see how California actually intends to police social media usage before he can decide if the law is actually unconstitutional. Specifically, the judge said he will need to wait for California to enact specific rule and regulations before courts can determine the constitutionality of SB976 and its age verification requirements.
The judge also expressed doubts over claims that the law restricts access to content, noting that that law still allows social media companies to send users information and content based on their "personalized feed" algorithms, which he said "might recommend posts based on both content moderation policies and user activity, or both expressive and non-expressive factors."
He said social media companies could also choose to "remove the user activity factors from the recommendation algorithms driving its media feed" to address state concerns.
"In short, much of the First Amendment analysis depends on a close inspection of how regulated feeds actually function," Davila wrote.
The judge, however, said he believed the law went too far in requiring social media companies to turn over data on user activity to the state and in setting time limits on push notifications sent to young users by social media companies.
However, the judge said the rest of the law could still be enforced as the larger constitutional challenge plays out in court.
NetChoice is represented in the action by attorneys Steven P. Lehotsky, Scott A. Keller, Jeremy Evan Maltz, Shannon Grammel, Joshua P. Morrow and Jared B. Magnuson, of the firm of Lehotsky Keller Cohn LLP, of Washington, D.C.; Austin, Texas; and Atlanta; and Bradley A. Benbrook and Stephen M. Duvernay, of the Benbrook Law Group, of Sacramento.
Following the Dec. 31 ruling, NetChoice immediately filed a notice of appeal and asked the judge to block the law entirely, for now, while the appeal played out.
Judge Davila agreed and issued an order on Jan. 2 putting the law on hold until Feb. 1, saying NetChoice should be allowed time to ask the U.S. Ninth Circuit Court of Appeals to similarly block the law on an emergency basis.
"If NetChoice is correct that SB 976 in its entirety violates the First Amendment - although the Court does not believe that NetChoice has made such a showing on the current record - then its members and the community will suffer great harm from the law’s restriction of speech," Davila wrote. "Also, as to NetChoice’s members specifically, many may need to make significant changes to their feeds. Likewise, if NetChoice is correct in its argument, the public interest would tip sharply in its favor because there is a strong interest in maintaining a free flow of speech. Given that SB 976 can fundamentally reorient social media companies’ relationship with their users, there is great value in testing the law through appellate review."
In response to the Jan. 2 ruling, Paul Taske, NetChoice Associate Director of Litigation, issued a statement saying: “While we are disappointed that the District Court did not grant our entire preliminary injunction, we are glad it agreed to issue this temporary stay while we appeal. We look forward to seeing California in the Ninth Circuit to yet again stop the state from creating an online censorship regime."