• by Wendy Davis , 3 hours ago

Google, Meta and TikTok on Thursday pressed a federal appeals court to block enforcement of a California law prohibiting the companies from algorithmically recommending posts to minors under 18 without the consent of a parent or guardian.

The companies contend that the restrictions on algorithmic recommendations in the Protecting Our Kids From Social Media Addiction Act (SB976) are unconstitutional, arguing that their algorithmic recommendations are protected by the First Amendment because they reflect editorial decisions about how to curate speech.

"SB 976 burdens Meta’s First Amendment rights twice over: first, by interfering with Meta’s editorial judgment about how to select and present protected user-generated content ... and second, by restricting Meta’s ability to disseminate that content," Meta writes in papers urging the 9th Circuit Court of Appeals to immediately prohibit enforcement.

Google and TikTok make similar arguments.

The new filings come in a battle dating to 2024, when the tech industry group NetChoice sued over the law, arguing that it violates web publishers' First Amendment right to recommend content, and teens' constitutional right to access content.

Last year, the 9th Circuit said NetChoice wasn't 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 aren't the type of "expressive" speech protected by the First Amendment.

The platforms are now appealing that ruling, and have asked the 9th Circuit to block enforcement while their appeal proceeds.

California Attorney General Rob Bonta opposes that request, arguing in papers filed earlier this month that algorthmic recommendations aren't protected by the First Amendment because they're not at "the product of human editorial judgment."

"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 argued.

The platforms disagree with that characterization.

"The feeds at issue here ... involve human-crafted algorithms that implement Meta’s content-moderation judgments and account for interests such as content diversity, speaker diversity, and promotion of up-and-coming creators," Meta writes.

TikTok adds that California "misunderstands the editorial values embedded in TikTok’s algorithm."

"For each user’s feed, TikTok prefers content that is new to that user, non-repetitive to that user, age-appropriate to that user, and/or promotes TikTok’s objectives if displayed to that user," TikTok argues. "By prohibiting TikTok from considering user information, SB976 makes it impossible for TikTok to implement those editorial preferences."

YouTube likewise says its personalized recommendations "reflect its expressive choices to provide tailored, age-appropriate content to minors in different age groups and to avoid repeatedly recommending to teens content that, while innocuous as a single video, could be problematic if viewed in high quantities."

YouTube adds that the evidence in the case shows that people at the company "are constantly making judgments about what content should qualify as 'interesting, relevant, and valuable,' monitoring the algorithm to ensure it reflects those judgments, and adjusting it when it does not."

"When YouTube’s algorithm determines that a sports video -- rather than a math video -- will be interesting to a user who has watched physics videos, that is because YouTube engineers decided that physics and math are not sufficiently diverse topics and trained the algorithm accordingly," YouTube writes. "When the algorithm recommends a video featuring 'respect or good behavior' to an 11-year-old, that is because humans at YouTube decided that type of content is valuable for a user of that age."

The 9th Circuit hasn't yet said when it will rule on the platforms' request.