Judge Allows California Regulation of Addictive Feeds to Go Into Effect

Drawing heavily from EPIC’s amicus brief in the case, a federal judge has rejected significant parts of NetChoice’s challenge to California’s law prohibiting companies from providing addictive feeds to minors. Starting tomorrow, January 1, companies will be prohibited from providing an addictive feed to a user they know to be a minor unless the minor’s parent consents. The judge did enjoin the law’s restrictions on notifications and compelled disclosure requirements based on First Amendment concerns.

The centerpiece of California’s SB 976 is a restriction on “addictive feeds,” or algorithms that select and organize media for users based on users’ behavior on their platform and not their explicit preferences. Until January 2027, companies are only prohibited from providing addictive feeds to users they know are minors unless the minors’ parents consent. From January 2027 onward, companies will be required to use age assurance techniques to determine whether a user is a minor, subject to regulations that will be issued by the Attorney General. The law also includes a restriction on nighttime notifications for minors, a requirement that companies disclose certain statistics about minors’ use of the platform, and a number of default settings that allow parents to control when their children receive notifications, how long they can use addictive feeds, who can contact their children, and whether their children can see the number of likes and comments their posts receive. The law, enacted in September, was set to go into effect January 1, 2025.

On November 12, NetChoice sued to enjoin SB 976 in its entirety, arguing that the law violated the First Amendment, among other things. The California Attorney General countered that NetChoice had failed to meet its burden in a facial challenge. EPIC filed an amicus brief countering two of NetChoice’s arguments: that the addictive feeds provision regulates expression, and that the current record could support an injunction against the age assurance requirement.

Judge Davila’s decision to deny an injunction against the age assurance and addictive feeds provisions relied heavily on EPIC’s brief and cited it several times. Specifically, Judge Davila acknowledged that the Supreme Court’s previous decisions about the constitutionality of age assurance relied on lower court’s extensive factual findings, and that such findings were not possible to make based on the current record and that the Attorney General had not yet issued regulations about how companies ought to implement age assurance in accordance with SB 976.

Crucially, 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. Judge Davila wrote, “much of the First Amendment analysis depends on a close inspection of how regulated feeds actually function. Because NetChoice has not made a record that can be used to address these important questions, it has not met its burden to show facial unconstitutionality.”

The decision is the latest blow to NetChoice’s campaign to convert the First Amendment into an all-purpose immunity shield for Big Tech. In July, the Supreme Court chided NetChoice for bringing sweeping challenges to laws based on barebones records, demanding instead that NetChoice make specific constitutional arguments against statutes and to support these arguments with robust records. In August, the Ninth Circuit applied the Supreme Court’s reasoning to NetChoice’s challenge to the California Age-Appropriate Design Code, sending most of the case back to the lower courts for further legal and factual development.

EPIC supports common sense guardrails on platform design and regularly participates as amicus in cases where industry challenges the constitutionality of regulation.