Updates

Ninth Circuit Signals Mixed Bag for Litigants in NetChoice v. Bonta and X v. Bonta

July 18, 2024

On Wednesday, July 18, the Ninth Circuit heard oral argument in two important First Amendment challenges to California platform governance laws: NetChoice v. Bonta and X v. Bonta. The Ninth Circuit panel that heard the cases seemed influenced by the U.S. Supreme Court’s recent decision in Moody/Paxton, which held that that First Amendment challenges to platform regulations need to be specific and facial challenges carry a big burden.

In the NetChoice argument, the panel did not think the lower court applied the right standard for a facial challenge. They suggested that it was impossible to analyze the constitutionality of many of the California AADC’s (CAADC’s) provisions in a facial challenge and that as-applied challenges would be more appropriate. The panel also sounded like it did not agree with the lower court’s First Amendment analysis. The lower court had said all data protection laws are suspect under the First Amendment. Thankfully, the panel will likely vacate the lower court’s dangerous order.

The NetChoice panel seemed to highly suspect the CAADC’s data privacy impact assessment (DPIA) was unconstitutional specifically because it mentions harmful content, so that portion of the law may not survive the challenge. A DPIA that was more clearly focused on content-neutral data and design practices would not likely get the same treatment.

The panel seemed to think the DPIA provision requires companies to opine on what content is harmful. That is not what the law requires. But it is hard to show how this provision applies in the abstract. And that is exactly why NetChoice argued this in the abstract facial challenge posture. The state’s attorney tried to explain how the DPIA would work in a specific fact scenario, but the judges cut her off. Arguably, this failure to assess how the DPIA provision applies in a realistic fact scenario contradicts SCOTUS’s guidance in Moody/Paxton.

One upside is that the panel seemed to think content-neutral data and design regulations are permissible under the First Amendment. They did not seem to buy NetChoice’s argument that age estimation and data protection laws were necessarily restrictions on content and indicated they’d have many constitutional applications

In the X v. Bonta case, X has tried to get a rule that all platform transparency laws about content moderation practices are presumptively unconstitutional. The panel, seemingly influenced by Moody/Paxton, took a more granular approach.

At least two of the judges on the panel were analyzing the law’s constitutionality on a provision-by-provision basis, asking how they impacted expression and whether different First Amendment standards should apply to each.

A majority on the panel seemed to think that Zauderer, which establishes a relatively permissive test for the constitutionality of transparency laws, applies to at least some of the law’s provisions.

When X argued that the law should be struck down because the AG might use it to pressure content moderation changes, Judge Johnstone rightly pointed out that X was making a jawboning claim and that facial invalidation of a statute is an odd remedy for jawboning.

The decisions in these cases might be a mixed bag for these particular laws, but the hearing indicates that facial challenges to carefully crafted data, design, and transparency laws will face a real uphill battle going forward.

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