EPIC Urges Northern District of California to Reject NetChoice’s Request to Enjoin California Law to Regulate Addictive Feeds for Minors

On December 10, 2024, EPIC submitted an amicus brief in NetChoice v. Bonta, an important case about whether the First Amendment prevents the government from regulating harmful, content-neutral features on online platforms. EPIC’s brief urged the court to deny the tech industry trade association NetChoice’s request for a preliminary injunction that seeks prevent California’s Protecting Our Kids from Social Media Addiction Act (SB 976) from going into effect by declaring the law unconstitutional.

California passed SB 976 to regulate minors’ access to “addictive feeds,” which present a user with whatever content will increase the user’s usage of a website or platform. Many platforms offer addictive feeds that surveil users’ behavior, build profiles of them, and then show the users whatever content that similarly profiled users engaged with. This boosts the companies’ revenues, but reduces user’s choice over the materials they see and leads to mental and physical harms to children.

NetChoice claims the law is unconstitutional because providing addictive feeds is an expressive act, as is the age assurance that platforms would have to perform to ensure the law only applies to minors. EPIC’s brief explains why NetChoice’s challenge should fail for three different reasons.

First, NetChoice’s challenge fails to comply with the Supreme Court’s recent Moody v. NetChoice decision about how to conduct a facial challenge. NetChoice has not build a sufficient record under Moody’s rigorous standard for First Amendment facial challenges to platform regulations. It is asking the court to guess about what the law regulates and how it works instead of actually asserting facts.

Second, because SB 976 regulates companies’ use of engagement-based profiling, the Act “only regulates non-expressive platform functions, and not expressive content moderation activities, it does not implicate covered entities’ First Amendment rights.” Unlike other recently passed laws that seek regulate access to social media for minors or that regulate platforms’ content moderation decisions, SB 976 regulates a content-neutral platform design activity. That simply does not implicate the First Amendment in the broad way that NetChoice argues in their facial challenge.

Finally, NetChoice has failed to show that SB 976’s age assurance provision would likely chill speech. Echoing EPIC’s recent amicus brief in Free Speech Coalition v. Paxton that is currently pending before the Supreme Court, EPIC pointed out NetChoice’s premature and insufficient factual record specific to SB 976’s age assurance provision. “It is not enough for NetChoice to rely on decades-old factual findings, to analogize SB 976 to very different laws, or to make assumptions about how companies will implement SB 976.”

EPIC regularly submits amicus briefs in cases involving the intersection of privacy, kids’ safety, and First Amendment rights. In addition to EPIC’s amicus brief in Free Speech Coalition v. Paxton, EPIC also filed extensive comments about age assurance best practices in the New York Attorney General’s rulemaking to implement the NY SAFE for Kids Act. EPIC advocates for platform accountability and governance policies that protect the speech, privacy, anti-discrimination, and safety rights of internet users.