• by Wendy Davis , Yesterday

California is urging a federal appeals court to reject Google's and Meta's most recent push to block enforcement of a law prohibiting social platforms from algorithmically recommending posts to minors under 18 without the consent of a parent or guardian.

In papers filed late last week with the 9th Circuit Court of Appeals, Attorney General Rob Bonta argues that algorithmic recommendations are not protected by the First Amendment, contending that those recommendations aren't "the product of human editorial judgment."

"Instead, humans have outsourced those choices to non-human computer algorithms, directing them to run calculations based on millions or billions of user data points to compile posts that are probabilistically most likely to keep each user engaged on the platforms for as long as possible," Bonta argues.

The battle over the algorithms began in 2024, when the tech industry group NetChoice alleged in a lawsuit that restrictions in the Protecting Our Kids From Social Media Addiction Act (SB976) violates web publishers' First Amendment right to recommend content, and teens' constitutional right to access content.

Last year, the 9th Circuit said NetChoice was not in a position to make that argument.

Instead, the appellate court ruled, individual social platforms that want to block the law would have to sue individually.

Google, Meta and TikTok subsequently alleged in separate complaints that their recommendations were editorial speech, protected by the First Amendment.

Last month, U.S. District Court Judge Edward Davila in the Northern District of California rejected the platforms' arguments, writing that personalized recommendations are not the type of "expressive" speech protected by the First Amendment.

Meta, Google and TikTok are now appealing that ruling to the 9th Circuit. Meta and Google have also asked the appellate court to temporarily block enforcement while it considers the appeal.

YouTube said in its petition that recommendations reflect the company's editorial judgment that "personalized feeds best serve users by helping them find content that is relevant and enriching for them personally."

"That decision to tailor a compilation of content to each user’s interests is no less expressive than a blanket choice to show the same type of content to all users," the company wrote.

But Bonta contends that the recommendations themselves do not reflect editorial choices about "a certain content or viewpoint," but are instead based solely on mathematical formulas.

"Making definitive judgments over which messages and viewpoints to convey or not convey, based on a set of beliefs about which messages are appropriate and which are not --- is what constitutes editorial judgment," the state argues. "But it is this editorial act that plaintiffs have outsourced to their non-human feed-personalization algorithms."

The 9th Circuit has not indicated when it will rule on the tech companies' request for an injunction.