The state of California has suffered another loss in court, as tech companies have again landed a court order blocking a law the tech groups say amounts to unconstitutional online censorship in the name of protecting children.
On March 13, U.S. District Judge Beth Labson Freeman entered an injunction against the state, preventing the state from enforcing any part of Assembly Bill 2273, which supporters labeled the Age-Appropriate Design Code Act (AADCA).
“Today’s ruling reaffirms - for the third time in California - that the government cannot control what lawful speech Americans see, say, or share online,” said Chris Marchese, Director of Litigation for the organization known as NetChoice.
NetChoice is an association representing the interests of a consortium of tech companies, social media platforms and online marketplaces.
“While protecting children online is a goal we all share, California’s Speech Code is a trojan horse for censoring constitutionally protected but politically disfavored speech," Marchese said. "This decision puts other states on notice that censorship regimes masquerading as ‘privacy protections’ will not survive judicial review.”
NetChoice filed suit against AB2273 when it was enacted in 2022.
Supporters of the California AADC said the law - which was the first of its kind in the U.S. - is patterned after a United Kingdom law which requires social media platforms and other online businesses who collect information about their customers set up certain state-mandated "privacy protections" for younger users.
California Attorney General Rob Bonta has said the law is needed to force social media companies to redesign their products to end "features that may be harmful to children, including manipulative techniques to prod them to spend hours on end online or provide personal information beyond what is expected or necessary."
NetChoice and their coalition members, including the largest social media platforms, such as Facebook- and Instagram-parent Meta and the parent company of TikTok, have argued the law unconstitutionally forces businesses to "over moderate" and restrict certain information.
NetChoice has argued AB2273 actually harms minors and places "draconian penalties" to online businesses and pressures the companies to "serve as roving censors" to internet speech by requiring them to verify the age of their users.
NetChoice has prevailed at each stage of the proceedings since.
After the online companies won in San Jose federal district court, Bonta and the state of California appealed.
But NetChoice won again before the U.S. Ninth Circuit Court of Appeals, as judges there agreed the online companies were likely to prevail in their challenge on at least one First Amendment argument, namely that the CAADCA law restrains protected speech.
The appeals court said questions surrounding some of NetChoice's other accusations were not as clear cut, and sent the matter back down to San Jose district court for further proceedings.
However, after several more months of arguments there, Judge Freeman again entered an injunction blocking the state from enforcing any part of the California AADCA.
While the judge said some of NetChoice's claims fall short, she said the tech companies and their advocates had done enough to show the law would infringe upon their First Amendment rights and open the way for the state to take arbitrary actions against businesses who can't know what is fully expected of them under the law.
She agreed, once again, that California state officials can't show the law's reach would only end at protecting children online, and would result in the state essentially dictating "editorial" policies over online sites, unconstitutionally favoring some forms of content over others.
"Even if the Court were to accept that the Act advances a compelling State interest in protecting the privacy and well-being of children, the State has not shown that CAADCA is narrowly tailored to serve that interest," the judge wrote. "The Act applies to all online content likely to be accessed by consumers under the age of 18, and imposes significant burdens on the providers of that content.
"... The State has not even attempted to explain whi its interest in protecting children could not be serve by a less restrictive statute."
The injunction blocking the AADCA took effect immediately.