California's controversial kids online safety code will unconstitutionally restrict news organizations' ability to distribute editorial material to minors, and will limit teens' ability to access content, The New York Times Company and Student Press Law Center are telling a federal judge.
"The clear and natural effect of the Act is that online publishers, including mainstream news websites, either must submit to content-based regulation, or they must substantially curtail young people's access," the press groups say in a friend-of-the-court brief filed Monday with U.S. District Court Judge Beth Labson Freeman in San Jose, California.
"The Act would do real harm to the First Amendment rights of minors and to news organizations and should be enjoined," the groups add.
The California Age-Appropriate Design Code, which was passed last year, requires online companies that are likely to be accessed by users under 18 to prioritize their "best interests" and "well-being." The law also includes privacy provisions that prohibit online sites that are likely to be accessed by minors from collecting or sharing their personal information -- unless doing so is necessary to provide a specific service that the minor is actively using, or unless collecting or sharing the information is in minors' best interests.
The tech industry organization NetChoice is challenging the law in court, arguing that the mandate to prioritize young users' well-being violates the First Amendment.
"The 'harm' the law seeks to address -- that content might damage someone’s 'well-being' -- is a function of human communication itself," NetChoice argues in a request to block enforcement.
NetChoice also says the law is unconstitutionally vague, arguing that terms like "best interests" and "well-being" are subjective.
"A child whose relative died of COVID-19 may find news about the pandemic profoundly upsetting and be 'potentially harmed,' whereas another child would not," that organization argued earlier this year.
California officials are defending the law's privacy provisions, arguing in written papers that companies “have no right to children’s personal information.”
State officials also contended that the law won't restrict the material itself that's made available to minors.
But the Times and other critics disagree, arguing that the law's provisions regarding content will limit teens' ability to access a range of lawful material, including news.
The law "goes well beyond regulating data to also regulate online speech and expressive conduct," the Times and Student Press Law Center write.
The law itself explicitly says companies that develop or provide online services likely to be accessed by children "should consider the best interests of children when designing, developing, and providing that online service, product, or feature."
The statute also says: "If a conflict arises between commercial interests and the best interests of children, companies should prioritize the privacy, safety, and well-being of children over commercial interests."
The media organizations argue that the law's provisions "have the effect of limiting young people’s expressive conduct online and their access to otherwise lawful information and content -- including news content."
"The Act requires that websites take steps to limit young people from witnessing content, conduct, or advertising that may be 'harmful,' however the regulator defines that term," the organizations write.