Judge in California Age-Appropriate Design Code Case Gets the First Amendment Wrong—Again

Yesterday, a federal judge issued a second preliminary injunction against California’s Age-Appropriate Design Code (“CAADC”). The judge’s First Amendment analysis flouted directions from the Ninth Circuit and the Supreme Court to more critically examine Big Tech’s demands for broad relief from regulation. The decision erroneously questions the constitutionality of every law giving kids special protections online—including the long-standing Children’s Online Privacy Protection Act (“COPPA”).

In the fall of 2023, Judge Freeman granted NetChoice its first preliminary injunction against the CAADC. The reasoning in that decision was deeply flawed and would have made privacy law enforcement nearly impossible. California appealed the decision to the Ninth Circuit. In the interim, the Supreme Court decided Moody v. NetChoice, declaring that NetChoice could not request broad invalidation of a law without building a robust factual record and making specific constitutional arguments about the full range of platform activities the law covered. 

Applying the Moody decision, the Ninth Circuit found that NetChoice had only met its burden of showing that the CAADC’s data protection impact assessment (“DPIA”) likely violated the First Amendment, and vacated Judge Freeman’s preliminary injunction with respect to the rest of the law. The court directed NetChoice to develop the record so Judge Freeman could determine the full range of activities the law regulated and the constitutionality of regulating those activities.

Back at the district court, NetChoice did not build a more robust record. Instead, it added a new, equally overbroad argument that the CAADC was unconstitutional because it regulated some entities but not others. Judge Freeman agreed. She said that the CAADC is presumptively unconstitutional because it only regulates online products and services children are likely to use—and does not regulate products and services children are unlikely to use. 

During the Moody oral argument and in the recent TikTok v. Garland decision, the Supreme Court chided industry for making similar arguments—that laws are presumptively unconstitutional if they regulate some entities and not others. The justices pointed to precedent that the choice to regulate some entities but not others only implicates the First Amendment when it suppresses the speech of disfavored speakers on a disfavored topic. The CAADC is certainly not aimed at shutting down websites that kids frequent or at suppressing content children are likely to be interested in, and there is hardly evidence in the record to show that regulated entities would remove kids-oriented content or shut down entirely to avoid regulation. Because NetChoice did not provide any facts supporting this argument, it should have lost under Moody. But Judge Freeman, in defiance of Supreme Court and Ninth Circuit precedent, failed to demand the facts necessary to assess NetChoice’s constitutional challenge.

Judge Freeman also failed to appreciate that it makes logical—and constitutional—sense to apply kids’ safety laws only to products and services that kids are likely to use. There is no good reason to require every business to change their products and services to accommodate kids, even if zero kids use them. Industry is also likely to attack such a law for the opposite reason it attacked the CAADC: because it is overbroad instead of underinclusive. 

The Supreme Court has repeatedly said that the First Amendment should be applied consistently online and offline. Offline rules that apply only to products aimed at kids are uncontroversial and not subject to First Amendment scrutiny. The same ought to be true in the online context. 

Another indication that Judge Freeman’s decision is wrong is that it calls into question the constitutionality of longstanding kids’ online privacy protections, like COPPA. COPPA, like the CAADC, only regulates online products and services directed at children. If the CAADC is presumptively unconstitutional because it only applies to products and services directed at kids, then so is COPPA. The idea that COPPA—which has been good law for nearly thirty years—is possibly unconstitutional contradicts all logic and intuition. 

In reaching the First Amendment issues at all, Judge Freeman also flouted the doctrine of constitutional avoidance. This doctrine tells courts not to decide the constitutionality of a statute if there are non-constitutional grounds on which to rest their decision. Judge Freeman found that the CAADC’s DPIA provision—which the Ninth Circuit said was likely unconstitutional—could not be separated from the rest of the law, and so the whole law had to be struck down. There was, therefore, a separate, non-constitutional grounding for the preliminary injunction, which means Judge Freeman should not have analyzed NetChoice’s constitutional arguments at all.

Finally, Judge Freeman’s decision is a sharp contrast to Judge Davila’s decision in the California addictive feeds law case, which correctly recognized that regulating some entities and not others does not necessarily make a platform regulation presumptively unconstitutional. Unsurprisingly, Judge Freeman did not grapple with Judge Davila’s decision in her opinion.

Judge Freeman is wrong—yet again—about the First Amendment. The First Amendment does not bar lawmakers from giving kids special protections online. If Judge Freeman had required NetChoice to build the record demanded of it by both the Supreme Court and the Ninth Circuit, she may have come to a different conclusion.