• by Wendy Davis  @wendyndavis, December 10, 2024

The tech industry group NetChoice is pressing a federal judge to block a California law that would prohibit social media platforms from algorithmically recommending posts to minors without their parents' consent.

The Protecting Our Kids from Social Media Addiction Act (SB 976), signed into law in September and slated to take effect next month, would also ban platforms from sending notices to minors between midnight and 6 a.m., and between 8 a.m. and 3 p.m. on school days, without parental consent. The measure is similar to a statute passed earlier this year in New York.

NetChoice -- which counts Meta, Snap, Google and other large tech companies as members -- is challenging the statute on First Amendment grounds.

The law will affect “a wide range of speech activities, with harms to both NetChoice’s covered member websites as well as their respective user,” NetChoice writes in papers filed Monday with U.S. District Court Judge Edward J. Davila in the Northern District of California.

“Without an injunction before the end of the year, NetChoice members and their users will be irreparably harmed,” the group adds.

In addition to the parental consent requirements, the Protecting Our Kids from Social Media Addiction Act requires the state attorney general to devise “age assurance” mechanisms that platforms could draw on to determine whether users are over or under 18.

Unless blocked, as of next month the law will only restrict companies from sending personalized feeds to users the platforms know are minors. But starting in 2027 the law will ban personalized feeds to all users, unless the platforms have “reasonably” determined those users are adults. The statute provides that this determination could be based on “age assurance” mechanisms.

NetChoice says that both the parental consent requirements and age assurance provisions violate the First Amendment.

“The Act would fundamentally limit the expressive activity of NetChoice members by restricting how and when they can disseminate personalized feeds,” NetChoice alleged in a complaint filed last month in U.S. District Court for the Northern District of California.

The group added that minors have a First Amendment right to access content, noting that the Supreme Court previously struck down a California law that would have banned the sale of violent video games to minors without parental consent.

Web publishers also have a constitutional right to display material content “including through the use of personalized feeds and notifications,” NetChoice added.

NetChoice also says the age assurance provisions violate people's First Amendment right to access media anonymously.

“Governments cannot require people to provide identification or personal information to access protected speech,” NetChoice wrote.

California Attorney General Rob Bonta countered earlier this month that the law is valid because it regulates “conduct,” not speech.

“The Act targets harmful online mechanisms, not content or types of content, or specific websites or online platforms,” Bonta argued in written papers. “In that sense, the Act is more akin to California laws that regulate, for instance, the ability of vendors to sell flavored tobacco products ... or casino operators to admit individuals under 21 years old.”

He added that the statute should be upheld because “it pursues a compelling interest -- the health of children -- while focusing narrowly on the mechanisms that cause children harm.”

On Monday, NetChoice urged Davila to reject Bonta's arguments and block the law from taking effect. Among other arguments, NetChoice says the law isn't comparable to statutes restrictions on gambling or cigarettes.

“Tobacco and gambling do not involve free speech rights” NetChoice wrote. “Minors have a First Amendment right to engage in speech; they lack a constitutional right to engage in the nonexpressive conduct of smoking and gambling.”

Davila is expected to hold a hearing in the case on December 17.