Is California’s Age-Appropriate Design Code Act Constitutional? (NetChoice, LLC v. Bonta)

NetChoice, LLC v. Bonta, argued before Judges Milan D. Smith, Jr., Mark J. Bennett, and Anthony D. Johnstone in the U.S. Court of Appeals for the Ninth Circuit on July 17, 2024. Argued by Robert Corn-Revere (on behalf of NetChoice, LLC) and Kristin Liska, Deputy Attorney General (on behalf of Robert Bonta, Attorney General of the State of California). A Description of the Law, from the Appellee’s Response Brief: The California Age-Appropriate Design Code Act, AB 2273, is one of the most expansive efforts to censor online speech since the inception of the internet. Born from British regulations unfettered by the First Amendment, the Act requires online services to: (1) develop and make available to the State plans to “mitigate or eliminate” any risks their services “could” expose a minor to “potentially harmful” content before publishing any content, (2) publish only content “appropriate” for minors without first verifying with “reasonable certainty” the user is an adult, (3) not publish content based on user preferences unless it is in minors’ “best interests,” and (4) enforce content moderation policies to the State’s satisfaction. Issues Presented, from the Appellant’s Opening Brief: 1. Whether the district court erred in applying heightened scrutiny to provisions of the California Age-Appropriate Design Code Act that regulate businesses’ collection and use of children’s data? 2. Whether the district court erred in determining that Plaintiff was likely to succeed on its claim that the Act violates the First Amendment? 3. Whether the district court erred in enjoining the Act in its entirety, in violation of California severability principles? Resources: Appellant’s Opening Brief Appellee’s Response Brief California’s Age-Appropriate Design Code Act (CAADCA) The Institute for Free Speech promotes and defends the political speech rights to freely speak, assemble, publish, and petition the government guaranteed by the First Amendment. If you’re enjoying the Free Speech Arguments podcast, please subscribe and leave a review on your preferred podcast platform. To support the Institute’s mission or inquire about legal assistance, please visit our website: www.ifs.org