• by Wendy Davis  @wendyndavis, January 7, 2025

A California law that prohibits social media companies from algorithmically recommending posts to minors without their parents' consent violates the First Amendment, the tech industry group NetChoice is telling a federal appellate court.

The restrictions on personalized feeds runs afoul of teens' constitutional “right to speak or be spoken to” without parental consent, NetChoice argues, quoting from a 2011 Supreme Court decision that struck down a California law restricting the sale of violent video games to minors.

The organization is asking the 9th Circuit to block enforcement of the Protecting Our Kids from Social Media Addiction Act (SB 976), which was signed into law last year and slated to take effect January 1.

In November, NetChoice sued to invalidate the law, arguing that minors have a First Amendment right to access content, and that web publishers have a constitutional right to recommend content.

Last week, U.S. District Court Judge Edward Davila blocked enforcement of parts of the bill, but said NetChoice hadn't proven that the restrictions on algorithmic recommendations were unconstitutional.

Davila wrote in a 34-page opinion that the restrictions on personalized feeds don't require platforms to remove any posts.

“Users may still access all posts by searching through the social media platforms,” Davila wrote. “NetChoice has not offered any authority suggesting otherwise, and the court is skeptical that speech becomes inaccessible simply because someone needs to proactively search for it. If that were the case, library books would be inaccessible unless a librarian recommends them because libraries hold too many books for a single person to sort through.”

NetChoice subsequently filed an appeal with the 9th Circuit and asked Davila for a temporary injunction. Davila granted the request and enjoined enforcement of the entire law until February 1.

The tech industry group late last week asked the 9th Circuit to extend that injunction while the appeal is pending. Among other arguments, NetChoice says that even if the law doesn't require social platforms to remove speech, the restrictions on recommendations effectively restrict companies' ability to offer compilations.

Davila “erred by focusing only on the availability of individual pieces of content, when that content forms part of a 'larger offering' of protected expression,” NetChoice writes.

The group adds that the decision could theoretically enable California “to basically ban all personalized feeds on the world’s major social media websites -- including those for adults.”