NetChoice Urges 9th Circuit to Affirm Injunction Blocking Calif. Social Media Law

California’s Age-Appropriate Design Code Act, AB-2273, “is one of the most expansive efforts to censor online speech since the inception of the internet,” said NetChoice’s response brief Wednesday (docket 23-2969) in the 9th U.S. Circuit Appeals Court in the appeal of California Attorney General Rob Bonta (D) to reverse the preliminary injunction that blocks him from enforcing the statute (see 2312140003).

AB-2273 was born from British regulations that are “unfettered by the First Amendment,” said NetChoice’s brief. It requires that before publishing any content, online services develop and make available to the state plans to mitigate or eliminate any risks their services could expose a minor to potentially harmful content, it said. It also requires services to publish only content that’s appropriate for minors without first verifying with reasonable certainty that the user is an adult, it said.

The statute also bars online platforms from publishing content based on user preferences unless it’s in minors’ best interests, said the brief. It also requires the platforms to enforce content moderation policies to the state’s satisfaction, it said. The district court’s decision to preliminarily enjoin “this direct attack on expression” was correct, it said.

California argues that AB-2273 regulates only economic activity, so the First Amendment doesn’t apply, but this is “plainly wrong,” said the brief. As the district court concluded, the law’s prohibitions and mandates regulate speech, it said. That was the state’s “professed aim,” it said.

AB-2273 violates the First Amendment “in numerous ways,” said the brief. It creates a regime of “proxy censorship” that coerces services to suppress protected speech, it said. The statute also is “massively overbroad,” and is “rife with vague, undefined terms,” it said. The statute also “restricts and chills protected speech based on its content, speaker, and audience,” it said.

The state hasn’t shown that AB-2273 “advances an interest unrelated to the suppression of speech, much less is narrowly tailored to serve such an interest,” as the law applies to most of the internet, said the brief. The statute “flunks even intermediate scrutiny, as the district court found,” it said. But because AB-2273 is a content-based regulation of speech, it’s “properly subject to strict scrutiny,” it said. That’s a standard that the state doesn’t attempt to meet and the statute “fails to satisfy,” it said.

The 9th Circuit should affirm the district court’s injunction under the First Amendment, said the brief. It should also affirm because AB-2273 violates the Constitution’s commerce clause and is preempted by the Children’s Online Privacy Protection Act and Section 230 of the Communications Decency Act, it said.