EPIC, Tech Justice Law, and Scholars Urge Ninth Circuit to Reject Big Tech’s Claim That Addictive, Surveillance-Based Feeds Are Not Protected Speech

On Tuesday, EPIC, Tech Justice Law, and sixteen law and technology scholars filed an amicus brief urging the Ninth Circuit to affirm a district court’s decision rejecting Meta, Google, and TikTok’s First Amendment challenges to California’s SB 976. The law prohibits companies from providing addictive social media feeds to minors by limiting the companies’ use of kids’ behavioral data to select and rank content.

In August, the District Court denied the companies’ motions for a preliminary injunction. The court cited EPIC’s earlier amicus brief multiple times in holding that using an algorithm to show users whatever will keep them on the platform longest is not expressive. The companies appealed, repeating their claim that using surveillance data to behaviorally profile minors is First Amendment-protected editorial discretion.

EPIC’s brief explains why that argument still fails. Content moderation, where companies remove or downrank posts that violate their policies on what is fit to publish, can be expressive, as the Supreme Court signaled in Moody v. NetChoice. But behavioral profiling algorithms are something else entirely. They are designed to evaluate users, not messages. They don’t assess the meaning of the content they serve, and they don’t reflect any intent to communicate a theme or viewpoint. Their only goal is to maximize how long users stay on the platform, which is why they so often amplify content the companies themselves say is unfit for publication.

The brief also rebuts the companies’ claim that personalization is inherently expressive. If it were, a smart thermostat or a liquor store clerk recommending a fruity beer to a minor would be engaged in protected speech too. And the companies’ favorite analogy, that surveillance-based feeds are like librarians offering recommendations, doesn’t hold up: librarians respond to patrons’ stated requests. They don’t trail children around the stacks measuring how long their eyes linger on each book cover as the sole criterion for which book they will recommend next.

Finally, the brief explains that SB 976 doesn’t limit the circulation of any information. The companies can still distribute every post to every user and can still personalize feeds based on subscriptions, stated interests, and aggregate metrics. Even if the law were said to burden distribution, it would be a constitutional, content-neutral restriction on the manner of distribution.

This is the latest in a series of briefs EPIC has filed countering Big Tech’s attempts to use the First Amendment to shield harmful design practices, including in the district court below. EPIC regularly advocates for social media design regulations and files amicus briefs in cases where tech companies deploy overbroad First Amendment and Section 230 theories to overturn common-sense privacy and safe design laws.