California Law Seeking to Regulate Social Media Use by Minors Raises First Amendment Issues

After a California federal court allowed the government to enforce a key provision of the Act, the Ninth Circuit Court of Appeals enjoined enforcement of the Act pending appeal in California’s Northern District.

The Act Attempts to Prevent Social Media Addiction in Children

On September 20, 2024, Governor Gavin Newsom approved the Act, SB 976, which was set to go into effect on January 1. The Act’s intention is “to ensure that social media platforms obtain parental consent before exposing children and adolescents to harmful and addictive social media features.”

Key provisions in the Act impose significant limits on personalized feeds, which are collections of media content that a website or application shows to a user specifically based on that user’s behavior and preferences. Under the Act, personalized feeds are included in the definition of “addictive feed[s],” subject to certain exceptions. These exceptions mainly focus on collections of content shown to users that do not rely on the user’s information, device, previous interactions with media, past search terms, or is based on the user-selected privacy settings.

The Act defines “addictive internet-based service or application[s]” as a website or application that provides an addictive feed as a significant part of the service to its users, such as social media. The Act bans “operators” of “an addictive internet-based service or application” from providing addictive feeds to users unless (1) the operator lacks actual knowledge the user is a minor, (2) has reasonably determined the user is not a minor, or (3) has obtained verifiable parental consent that the operator may provide an addictive feed to the minor. Essentially, this seeks to limit the availability and use of algorithms that cultivate social media addiction in minors.

In addition to the personalized feed provisions, the Act also prohibits addictive internet-based services or applications from sending push notifications to children at certain times of day, such as at night and during school hours. Further, the Act imposes compliance requirements for operators, requiring those covered by the Act to create settings that allow parents to control their child’s social media use and also imposes certain disclosure obligations.

The Court Challenge and First Amendment Argument

In November 2024, NetChoice, LLC, a trade association of various online businesses, filed a complaint against the California Attorney General, arguing the bill violated the First Amendment of the US Constitution. NetChoice sought to permanently enjoin enforcement of the Act, arguing that it restricts the speech of entities required to comply with the Act. NetChoice claimed that a website’s ability to disseminate personalized feeds to users constitutes speech and is therefore protected by the First Amendment. NetChoice also argued that the Act burdens a minor’s access to free speech by placing restrictions on their access to social media.

In sum, NetChoice argued the Act is an unconstitutional content-based and speaker-based restriction on speech because the restrictions on operators are based on the content of an operator’s website (namely, addictive internet-based services or applications) and excludes websites that have chosen not to provide users with personalized feeds. NetChoice claims content-based and speaker-based restrictions on speech trigger heightened scrutiny, which NetChoice argues the government cannot satisfy because the Act is not “appropriately tailored to any substantial or compelling government interest.” Accordingly, NetChoice asked the court to enjoin the government from enforcing the Act.

District Court Order

The US District Court for the Northern District of California issued an order on New Year’s Eve in response to NetChoice’s Motion for Preliminary Injunction. NetChoice was able to block enforcement of the Act’s limitations on notifications, some of the required default settings, and the compelled disclosures provision. Importantly, however, the court denied the motion with respect to the personalized feed provisions.

In analyzing the parties’ arguments with the respect to the personalized feed provisions, the court was not convinced that NetChoice has shown that personalized feeds implicated by the Act are “expressive” and thus subject to First Amendment protection. Specifically, the court raised questions about how personalized feeds function, especially in the age of artificial intelligence (AI), which would need to be addressed before the court were to find these feeds constitute “expression.” Additionally, the court did not find that NetChoice met its burden in showing that the personalized feed provisions implicate the access of users of the covered applications and services to speech because users can still access social media posts through methods other than personalized feeds. Overall, the court found that NetChoice did not meet its burden to show likelihood of success on the merits of the First Amendment claim against the personalized feed provisions of the Act; the government is currently free to enforce these provisions.

Expedited Appeal for Injunctive Relief

On the same day of the District Court’s Order on the plaintiff’s Motion for Preliminary Injunction, NetChoice filed a Notice of Appeal to the Ninth Circuit. The Court of Appeals agreed to an expedited appeal of the issue, and granted a temporary injunction of the government’s enforcement of the Act while the appeal is pending. The case is on the court’s calendar for April 2025.

Conclusion

As the case proceeds, the Ninth Circuit is likely to address legal issues that help clarify the relationship between social media and constitutional protections. Specifically, the decisions in this case will have implications on the meaning of “speech” as protected by the First Amendment. Notably, the District Court hinted at the role of AI in helping to curate users’ personalized feeds, and therefore the pending case may address how AI fits into First Amendment jurisprudence and the extent to which it constitutes human expression. Additionally, if enacted, the Act will create new compliance requirements for covered operators in California.

The Media & Entertainment team at ArentFox Schiff is closely monitoring legal developments related to the Act. If you have any questions or concerns pertaining to the Act or its potential implications on your business, please reach out to members of the ArentFox Schiff Media & Entertainment team.