EPIC-Led Group of Law and Technology Experts Urges Ninth Circuit to Rule that Social Media Companies’ Addictive Technology Is Not Protected Expression

On March 6, 2025, EPIC, the Tech Justice Law Project, and a group of eighteen law and technology scholars and practitioners—many of whom are EPIC Advisory Board members—submitted an amicus brief in NetChoice v. Bonta arguing that the government can constitutionally regulate addictive social media design features. The brief urges the Ninth Circuit to affirm a lower court ruling that California’s Protecting Our Kids from Social Media Addiction Act (SB 976) does not unconstitutionally burden speech. The lower court judge drew heavily from EPIC’s district court amicus brief.

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 in minors.

NetChoice sued to enjoin enforcement of SB 976, claiming, among other things, that the law is unconstitutional because providing addictive feeds is an expressive act protected by the First Amendment. The district court judge rejected NetChoice’s arguments about the addictive feeds portion of the bill. NetChoice is seeking to revive the addictive feeds claim on appeal in the Ninth Circuit.

The EPIC-led amicus brief explains that NetChoice should lose its appeal for two primary reasons.

First, the EPIC-led group points out that NetChoice misconstrues the Supreme Court’s recent decision in Moody v. NetChoice. That decision suggested only that social media companies’ content moderation decisions may be protected speech. The Court actually rejected NetChoice’s proposed rule—that all feed generation activities are expressive—by requiring courts to determine whether the specific activity regulated by the law is expressive. The Court explicitly questioned whether the activity regulated by SB 976—algorithmic feed generation that responds solely to users’ behavior—is expressive.

Second, the EPIC-led group argues that companies’ use of surveillance profiling to generate feeds is not expressive because it has nothing in common with examples of protected editorial discretion. Instead, surveillance profiling for feed generation is more like the functional activities courts have recognized may occur alongside expression. Thus, regulating surveillance profiling does not implicate the First Amendment, and even if it did, it should receive, and pass, a lower level of judicial scrutiny.

In the district court, Judge Davila agreed with EPIC that regulating addictive feeds does not clearly impact companies’ expression in any way. The judge wrote that, “[w]hen it comes to feeds that recommend posts based solely on prior user activity, there is no apparent message being conveyed.” NetChoice’s arguments to the contrary were unpersuasive, in large part because NetChoice provided few facts to back them up.

EPIC regularly submits amicus briefs in cases involving the intersection of privacy, kids’ safety, and First Amendment rights. EPIC advocates for platform accountability and governance policies that protect the speech, privacy, anti-discrimination, and safety rights of internet users.