Ninth Circuit Rejects NetChoice’s Attack on California’s Addictive Feed Regulation

In an opinion issued earlier today, the Ninth Circuit agreed with a district court judge that NetChoice is not entitled to a preliminary injunction against key provisions of California’s SB 976. In particular, the Ninth Circuit refused to grant NetChoice an injunction against SB 976’s ban on addictive feeds for minors absent parental consent. EPIC filed amicus briefs in both the district court and the Ninth Circuit urging this outcome. The district court repeatedly drew on and cited our brief. The Tech Justice Law Project and eighteen law and technology scholars and experts joined our brief in the Ninth Circuit.

The Ninth Circuit refused to enjoin SB 976’s addictive feeds provision because NetChoice failed to meet its burden for a successful facial challenge under Moody v. NetChoice. The court hammered NetChoice on its failure to build a record showing how the provision burdens covered businesses’ expression. The court noted that Moody did not declare algorithmic feeds to be categorically expressive and instead “left open the outer limits of which algorithm-based feeds are expressive for First Amendment purposes.” The court referenced passages from the Moody majority opinion and several of the concurrences, which question the expressiveness of algorithmic decisions based on user behavioral data or made by machine learning algorithms. The court declared that NetChoice was not entitled to an injunction because NetChoice failed to show how each of the covered businesses’ algorithmic feeds work and how they were expressive, as required under Moody. 

The decision underscores the fact that Moody’s holding was far from a punt. Gone are the days when industry could secure sweeping relief from regulation with hand wavy arguments and flimsy records. Under Moody, industry must offer specific constitutional arguments supported by robust factual records. In many circumstances, this burden will be “nearly impossible” to meet, according to the Ninth Circuit. In other circumstances, forcing industry to show its work will likely reveal the flaws in their arguments, making it more likely that good laws withstand constitutional scrutiny.

In addition to refusing to enjoin SB 976’s addictive feeds provision, the Ninth Circuit also:

• Rejected NetChoice’s argument that the law’s exemptions (for websites that only facilitate commercial transactions or host consumer reviews) automatically made the entire law content-based and presumptively unconstitutional (contra the district court in the California Age-Appropriate Design Code case);
• Rejected NetChoice’s argument that the law was unconstitutionally vague;
• Refused to enjoin the private-mode default setting, which restricts unconnected users from communicating with minors, finding that it was content-neutral and passed intermediate scrutiny;
• Refused to enjoin the law’s age assurance mandate, finding NetChoice’s claim unripe as the requirement will not be effective until 2027 and the state has not yet issued rules describing what age assurance methods can be used to fulfill the law’s obligations;
• Enjoined the law’s provision allowing parents to turn off like counts in their kids’ feeds, finding that it was content-based and failed strict scrutiny because the state could instead encourage websites to “offer voluntary content filters” related to like counts (presumably, for children to control and not for their parents);
• Found the like-count provision severable from the rest of the law, meaning that the addictive feed and private mode provisions can go into effect;
• Ordered the district court to modify its injunction, adding the like-count provision.

SB 976 has been enjoined pending appeal since the beginning of this year. Following the Ninth Circuit’s decision, the injunction pending appeal will be lifted, allowing the addictive feeds and private mode provisions to go into effect. 

EPIC routinely coordinates and files amicus briefs in important platform accountability cases and advises legislators on constitutional means of regulating harmful platform design.