Ninth Circuit To Hear Oral Argument in Case About Whether Algorithms Directed to Induce Habit-Forming Behavior Are Protected Speech

On April 2, 2025, the Ninth Circuit will hear oral argument in NetChoice v. Bonta, which concerns the constitutionality of two provisions of California’s Protecting Our Kids from Social Media Addiction Act (SB 976). The first provision prevents social media companies from using minors’ behavioral data to generate feeds. The second provision requires companies to determine whether a user is a minor before providing them with an addictive feed.  

The case raises several First Amendment questions that will impact the way legislatures can regulate Big Tech. Are all online content curation decisions expressive and subject to strict scrutiny? Are age assurance requirements per se unconstitutional, or does constitutionality depend on the specifics of the statute and the state of technology? Also at issue is whether social media-specific legislation automatically triggers strict scrutiny and whether NetChoice can prevail on their facial challenge without building the kind of record called for in the Supreme Court’s recent Moody v. NetChoice decision.

Relying heavily on EPIC’s amicus brief, the district court answered all of these questions in the negative and refused to grant NetChoice an injunction against the two provisions at issue in this appeal. Judge Davila found that regulating social media and not other platforms does not, on its own, trigger strict scrutiny. He determined that the type of curation that SB 976 regulates—which uses machine learning techniques to select and rank content based on users’ past behavior, not independent content guidelines—is not an exercise of expressive editorial judgement. He also correctly recognized that age assurance is not per se unconstitutional and that NetChoice’s challenge to the law’s age assurance provision was premature because the Attorney General had not yet determined what age assurance methods could be used to comply with the law.

In the Ninth Circuit, EPIC, the Tech Justice Law Project, and a group of eighteen law and technology scholars and practitioners submitted an amicus brief urging the court to affirm the district court ruling. The brief expands on our lower court arguments that the government can constitutionally regulate addictive feeds. Common Sense Media filed an amicus brief supporting the district court’s determination on the age assurance provision.

Here are a few things we will be looking out for when the Ninth Circuit hears oral argument in the case.

Will the Ninth Circuit continue to apply the correct facial challenge standard?

One important thing to track during oral argument is whether and how the Ninth Circuit panel questions NetChoice about its choice to pursue a facial First Amendment challenge without building the record required by the Supreme Court’s decision in Moody v. NetChoice.

Before Moody, NetChoice’s strategy was to abuse the hand-wavey nature of facial challenges, successfully getting courts to invalidate laws simply because of a remote chance that they could be enforced in an unconstitutional way.  In Moody, the Supreme Court repudiated NetChoice’s broad facial challenge strategy and explained that plaintiffs in facial challenges must meet a higher bar to win. To prevail on First Amendment facial challenges, a plaintiff must show that the unconstitutional applications of a law substantially outweigh the constitutional ones. A plaintiff can only show this by assembling a detailed factual record about who and what is being regulated, how that regulation impacts speech, whether each application is constitutional or unconstitutional, and whether the unconstitutional applications far outweigh the constitutional ones.

Just a few weeks after the Supreme Court issued the Moody decision, the Ninth Circuit used the Moody decision to vacate most of the injunction against California’s Age-Appropriate Design Code, further reinforcing the fact that NetChoice had to assemble a detailed factual record to prevail on a facial challenge.

But NetChoice refused to develop the requisite record in the SB 976 case—or any other case following Moody. For instance, NetChoice did not explain how social media companies regulated by SB 976 use behavioral data to generate feeds, how those uses of data are expressive, and why SB 976’s regulation of this data use is unconstitutional. NetChoice also did not describe the full range of age assurance methods that social media companies could use to comply with SB 976. The industry group instead relied on overbroad legal arguments that distort and overextend precedent. 

NetChoice did include “as-applied” challenges in this lawsuit as a response to the Moody decision. But even here, NetChoice failed to explain how the law would apply to its members and how those applications are unconstitutional. In reality, its “as-applied” challenge is a barely-disguised facial challenge that suffers from the same deficiencies. There is also a question of whether NetChoice has standing to bring these as-applied challenges. The district court said that the individual companies were needed to litigate the as-applied challenges and threw them out of NetChoice’s suit. Look out for questions from the Ninth Circuit panel about whether NetChoice’s as-applied challenge is really an as-applied challenge and whether NetChoice has standing to bring these claims.

Does the Ninth Circuit think regulating social media and not other types of platforms is enough to trigger strict scrutiny?

One of the overbroad legal arguments NetChoice has been pushing since the Moody decision is that statutes that regulate some platforms and not others are presumptively unconstitutional. This argument has gotten a lot of traction in the district courts—most recently in the latest district court decision in the California Age-Appropriate Design Code case. But the Supreme Court has been openly hostile to this idea. During oral argument in the Moody case and in the TikTok v. Garland decision, the Court reiterated that this speaker-based argument is a type of argument about the underinclusiveness of a statute, and underinclusiveness, on its own, is not enough to trigger strict scrutiny—there must also be a showing of viewpoint bias or targeting of a particular disfavored category of speech or speakers.  

Following the Moody decision, NetChoice has tried to recast its speaker-based arguments in the cloak of content-based claims. For instance, in this case, NetChoice says that regulating social media and not other types of platforms unfairly targets social content. But this content-based argument is a thinly veiled veneer on what is, essentially, a speaker-based argument. Judge Davila saw through this veneer. The question now is whether the Ninth Circuit will as well.

How will the Ninth Circuit evaluate whether engagement-maximizing algorithms are expressive?

Another likely line of questioning will focus on whether addictive design features such as engagement-maximizing algorithms are protected speech.

SB 976 prohibits social media companies from providing minors with “addictive feeds” absent parental consent. The addictive feeds targeted by SB 976 use behavioral data collected through surveillance of users to manipulate them into staying on the platform longer. These types of feeds are generated by what is popularly calls engagement-maximizing algorithms. Engagement-maximizing algorithms are one of a suite of addictive features that take advantage of human psychology to induce maximum usage of social media. This harms kids (and people in general) when it leads to social media overuse that interferes with sleep, exercise, and other important life priorities.

NetChoice says that the Supreme Court held in Moody that personalized social media feeds are expressive, so any decision used to create these feeds is an exercise of protected editorial discretion. But NetChoice elides the fact that the Court only said that one kind of feed generation process is likely expressive: a company’s removal and demotion of content that violates their content policies. This kind of curation activity is directly analogous to the curatorial activities the Court has long recognized are expressive editorial decisions. The Moody majority and several concurring justices recognized that using behavioral data to generate a feed is a substantively different kind of decision making process and questioned whether it is expressive. Since a law only implicates the First Amendment if it regulates expression, NetChoice should lose on its claims simply because it has not shown that using engagement-maximizing algorithms is expressive.

EPIC argued in its amicus brief that engagement-maximizing algorithms can be regulated without violating the First Amendment. Eighteen prominent legal and technology scholars joined our brief. And the district court judge below agreed. The Ninth Circuit will be the first appellate court to directly address this potentially groundbreaking First Amendment question.

Does the Ninth Circuit think age assurance is per se unconstitutional?

Finally, it will be interesting to see how the Ninth Circuit panel approaches age assurance. SB 976 aims to give minors extra protections online, and it requires social media companies use some form of age assurance before providing users with certain regulated features. The tech industry and some civil liberties groups strongly oppose laws that require companies to estimate users’ ages in any way and argue that these laws inevitably and invariably violate the First Amendment. EPIC believes that age estimation requirements can be constitutional depending on a variety of fact- and law-specific factors. Judge Davila relied heavily on EPIC’s amicus brief in the district court to come to the same conclusion. In the Ninth Circuit, Common Sense Media submitted an amicus brief explaining why the court needs to look at the specifics of the age assurance methods available before ruling on a law’s constitutionality.

The Supreme Court is also poised to weigh in on this issue in Free Speech Coalition v. Paxton. Judging from oral argument in that case, it is likely that the Court will say that age assurance in not per se unconstitutional and lay out factors courts should consider in determining the constitutionality of an age assurance requirement. It is possible that the Ninth Circuit will delay its decision or punt on this issue so they can consider it in light of the Supreme Court’s ultimate opinion in Free Speech Coalition.