EPIC Leads Group of Law & Technology Scholars in Rebutting Social Media Companies’ Arguments that Surveillance-Based Feeds Are Constitutionally-Protected Speech

EPIC and a group of law and technology scholars have filed an amicus brief defending California’s regulation of addictive feeds, Protecting Our Kids from Social Media Addiction Act (SB 976), against Big Tech’s latest constitutional challenge to the law. The three new lawsuits—filed by TikTok, Meta, and Google—claim that tech companies’ use of surveillance data to behaviorally profile minors is speech protected by the First Amendment. Our amicus brief explains that behavioral profiling in recommendation systems is not expressive, and companies cannot claim First Amendment protection for their non-expressive conduct simply by combining it with something that is expressive (e.g., content moderation).

California passed SB 976 to protect minors from “addictive feeds,” which surveil users’ behavior to manipulate them into staying on the platform. This addictive design practice boosts the companies’ revenues by maximizing the number of ads users see but invades users’ privacy, reduces their control over their online experience, and leads to mental and physical harms, particularly in minors.

TikTok, Meta, and Google sued to enjoin SB 976’s addictive feeds provision as applied to themselves after two courts found against NetChoice in its facial and as-applied challenges to the law. The district court judge in the NetChoice case was highly skeptical of NetChoice’s argument that the use of behavioral profiling algorithms to generate feeds was protected under the First Amendment. The judge also held that NetChoice could not seek as-applied injunctions for its member companies—such as TikTok, Meta, and Google—because the court needed to hear from the companies themselves how their algorithms actually worked. The Ninth Circuit panel upheld the district court’s denial of an injunction against the addictive feeds provision, noting that content selection and ranking decisions based on behavioral profiling is probably not expressive.

EPIC filed briefs in both the district court and the Ninth Circuit appeal of the NetChoice case. The district court opinion relied heavily on and cited to EPIC’s amicus brief.

EPIC regularly submits amicus briefs in cases challenging the constitutionality of privacy and online safety laws. EPIC advocates for platform accountability and governance policies that promote privacy and safety while protecting internet users’ speech rights.