A federal appeals court on Friday largely upheld a lower-court ruling blocking key provisions of California’s watershed child online safety law, the latest in a series of legal defeats for state officials looking to address concerns that digital platforms pose a risk to children.
The U.S. Court of Appeals for the 9th Circuit in San Francisco ruled that the law’s requirement that tech companies inspect whether their products may harm children before rolling them out — a central part of one of the most significant such laws in the United States — probably violates the First Amendment.
The court ruled that the requirement triggered strict constitutional scrutiny “because it clearly compels speech” by forcing companies to “opine” on what content could be harmful to children. And it found that the tech trade group NetChoice was likely to succeed in its challenge against it.
During oral arguments last month, the three-judge panel appeared inclined to at least partially side with NetChoice’s argument that the law “is a speech regulation masquerading as a privacy law.”
California lawmakers in 2022 passed the measure, known as the California Age-Appropriate Design Code Act, amid a bipartisan groundswell of concern that social media companies were failing to protect children on their services and exposing them to addictive features and harmful material. The law would also require companies to implement by default more stringent data privacy settings for children. Child safety advocates hailed the law at the time as a gold standard for digital safeguards.
But a federal judge dealt the push a major blow last year by granting NetChoice’s request for a preliminary injunction against it, finding that the law probably does “not pass constitutional muster.” California Attorney General Rob Bonta (D) appealed the decision, saying in a statement that the law is “about protecting children’s data, not limiting free speech.”
While the appeals court on Friday affirmed the earlier block against the law’s “impact assessments,” it vacated the injunction against privacy-focused provisions that require companies to estimate the age of child users and offer them a “high level of privacy” by default.
The court wrote that it was premature to consider whether parts of the law that are unrelated to the impact assessments could be severed from the rest. It remanded the issue to the lower courts.
Spokespeople for Bonta did not immediately return a request for comment.
Chris Marchese, who leads NetChoice’s litigation center, called the ruling “a victory for free expression, online security and Californian families.” The group counts Amazon, Meta and Google as members. (Amazon founder Jeff Bezos owns The Washington Post.)
Tech Justice Law Project executive director Meetali Jain, whose advocacy group backs the law, said that while they “remain frustrated that critical protections for California’s youth remain delayed by this legal challenge,” they are “encouraged” the ruling leaves open the possibility that other parts of the law are constitutional.
NetChoice has secured injunctions against other state laws aimed at protecting children online, including a Mississippi law requiring that digital platforms verify the age of their users.
The group’s legal victories have stunted child online safety efforts at the state level, where they had been gaining steam as consideration of similar proposals in Washington has stalled.
The Senate last month overwhelmingly passed a landmark bill that would require digital platforms to take “reasonable” steps to mitigate harms to children on their products, known as the Kids Online Safety Act, but the measure faces an uncertain path in the House.