NetChoice v. Bonta

Court: U.S. Court of Appeals for the Ninth Circuit

Date Filed: Feb. 14, 2024

Background: In September 2022, California Gov. Gavin Newsom signed into law the California Age-Appropriate Design Code Act, legislation that imposes certain obligations on entities whose online content is likely to be accessed by individuals under the age of 18.

The CAADCA requires for-profit businesses, including news organizations, that collect customers’ personal information to modify their services to mitigate or avoid the risk that children encounter “harmful or potentially harmful” content — even if that content or the depiction of the conduct is entirely lawful. Among the law’s provisions is a requirement that covered publishers prepare a Data Protection Impact Assessment for each “online service, product, or feature” that is “likely to be accessed by children.” The news organizations would then have to consider whether their online content could pose “harm” to minors and take proactive steps to mitigate the harm before making the content available. The law does not define “harm,” leaving the meaning of that term to be determined by regulators.

NetChoice, a tech industry trade group, sued California Attorney General Rob Bonta, challenging the constitutionality of the CAADCA. The U.S. District Court for the Northern District of California granted the trade group’s motion for a preliminary injunction, concluding that “the CAADCA likely violates the First Amendment.”

Bonta appealed to the U.S. Court of Appeals for the Ninth Circuit.

Our Position: The Ninth Circuit should affirm the district court’s injunction against the CAADCA.

• The CAADCA imposes unconstitutional content-based restrictions on news publishers.
• The CAADCA violates minors’ First Amendment rights to access news.

Quote: “The Act would require covered entities, including news organizations, to modify or restrict access to lawful content online — including public interest journalism — for fear of running afoul of the law. While the state has a legitimate interest in protecting children’s welfare, sections of the [CAADCA] — both expressly and because of vagueness inherent in other provisions — stray beyond that objective into government interference in constitutionally protected editorial choices. Worse, these parts of the law would do so in a way that impairs access by young people and the public at large to news they need to fully participate in civic life.”

Update: On Aug. 16, 2024, the Ninth Circuit held that the CAADCA requirement that websites “opine on and mitigate the risk that children may be exposed to harmful or potentially harmful materials online facially violates the First Amendment.” The court also clarified that that requirement should be assessed under strict scrutiny. Read our blog post about the ruling.