Appeals Court Upholds Injunction Against Key Provision of California’s Censorial Child-Safety Law

On August 16, the U.S. Court of Appeals for the 9th Circuit affirmed a district court’s injunction against a central provision of the California Age-Appropriate Design Code (AADC). Although it purported to protect children online, the law would instead operate as an de facto age-verification and censorship mandate.

The 9th Circuit held that the AADC’s Data Protection Impact Assessment (DPIA) violates the First Amendment. This provision would have required covered online services to submit reports identifying risks their data-management policies pose to children. It would further require them to mitigate those risks. California’s lawyers attempted to paint these requirements as merely incidental to the law’s larger goals and “not [compulsive of] businesses to express a message or interfere with any message a business might wish to send.”

Not so, the 9th Circuit ruled. The DPIA mandate unavoidably compels businesses “to opine on potential harm to children.” In other words, it compels speech, which the First Amendment prohibits. Moreover, the appeals court wrote, “the DPIA report requirement invites First Amendment scrutiny because it deputizes covered businesses into serving as censors for the State.” The AACDA enumerates clear categories of harm that businesses must identify in their covered services and from which they must protect children (e.g., “[w]hether the design of the online product…could…expos[e] children to harmful, or potentially harmful, content on the online product”).

This means, in practice, that California attempted to “deputize[]” private actors to withhold content – i.e., speech – from children. Precisely what types of content harms children remains controversial and differs between children based on age, maturity level, and personality traits. The AADC provides little specificity to guide companies.

Ultimately, the 9th Circuit held, “the State attempts to indirectly censor the material available to children online, by delegating the controversial question of what content may ‘harm to children’ to the companies themselves, thereby raising further questions about the onerous DPIA report requirement’s efficacy in achieving its goals.” The First Amendment cannot tolerate such censorship, whether direct or hidden.

This AADC highlights a troubling trend in digital regulation. Having determined through experience that outright censorship will fail to dodge judicial scrutiny, those hoping to control online speech have resorted to various kinds of burdensome disclosure regimes. These regimes often pretend to be neutral concerning content yet, as the appeals court noted, pursue the same censorial ends.

The 9th Circuit vacated the lower court’s injunction with respect to other of the AADC’s provisions. It held that the latter’s analysis was insufficient given the facial nature of the challenges brought by trade group NetChoice.

However, as law professor Eric Goldman argues, many of the law’s parts that momentarily escaped the 9th Circuit’s opprobrium will likely fall on further review. “I believe many of the remaining provisions will be once again declared unconstitutional due to the AADC’s predicate requirement that businesses age-authenticate their users, something that the 9th Circuit barely acknowledged but that casts a long shadow over the constitutionality of the entire law,” Goldman writes.

No matter how inconvenient for the AADC’s advocates, the fact remains that social-media platforms cannot implement most age-specific safety mechanisms without requiring age verification of all users. And age verification, when mandated by the state, violates the First Amendment.

As the Supreme Court recognized in July in the NetChoice cases, government cannot interfere willy-nilly in online platforms’ decision-making regarding what content to host and what to remove. The speech rights of platforms, and those of their users, remain protected.