Big Tech Companies Repeat Same Losing Arguments in New Challenge to California’s AB 1709

Yesterday, three Big Tech companies—Meta, Google, and TikTok—filed lawsuits against California’s AB 1709, arguing that the law’s prohibition on deploying addictive feeds and other addictive features to minors violates the companies’ First Amendment rights to curate and distribute speech. The tech companies’ new lawsuits mostly rehash the same arguments the companies made, and a district court rejected, in a similar case in August. In that case, the judge ruled that the companies’ addictive design of their feeds was not speech protected by the First Amendment. The judge cited EPIC’s amicus brief throughout the opinion.

Big Tech companies have a history of ignoring or reimagining court decisions they do not like. The most significant example is the tech companies’ insistence that the Supreme Court’s 2024 decision in Moody v. NetChoice was a groundbreaking win for them that prevents the government from regulating any aspect of their platforms’ designs. In reality, Moody was a major blow to Big Tech in two significant ways. First, it prevented the companies from winning using their favored litigation strategy of requesting sweeping relief from regulation based on barebones legal arguments and evidentiary records. Moody also narrowly delineated the First Amendment protections that should be afforded to tech companies’ design decisions—far from the absolute protections the companies’ claim it affords. 

Courts are increasingly aware of Big Tech’s sloppy litigation tactics and have been rejecting the industry’s claims that the First Amendment shields them from accountability. Since the Moody decision, Big Tech has failed to score a significant win in the appellate courts and has suffered many substantial losses:

• In three decisions over the last two years, the Ninth Circuit has largely rejected Big Tech trade group NetChoice’s arguments that regulations of platforms’ data practices and design features violate the First Amendment. The Court’s latest decision took NetChoice to task for ignoring the decision in Moody and for recycling arguments the Ninth Circuit had previously rejected.
• In June, the Sixth Circuit rejected NetChoice’s request for an injunction against an Ohio law limiting minors’ access to social media platforms. The two judges in the majority agreed that Big Tech’s interests conflicted with those of its minor users and so the companies could not assert its minor users’ First Amendment rights to access the platforms. The judges also agreed that Big Tech was not entitled to relief based on their own asserted First Amendment rights.
• In October, the Eleventh Circuit issued two decisions rejecting Big Tech’s challenges to Georgia and Florida laws limiting minors’ access to social media platforms. The Court found that NetChoice, the plaintiff in the Georgia suit, and the Computer & Communications Industry Association, another industry trade group that challenged the Florida law, both failed to carry their burden to facially invalidate the laws under Moody. The Court also rejected CCIA’s argument that the Florida law violated the First Amendment as applied to its members, finding that the law, which focused on addictive design, was adequately tailored to protect minors from the companies’ harmful business practices.

EPIC has participated as amicus in a series of cases to counter Big Tech’s attempts to use the First Amendment to shield harmful design practices, including in the related litigation regarding California’s SB 976, where our briefs have been cited in several decisions. 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.