9th Circuit: Key provision in California online safety law violates First Amendment

A federal appeals court has ruled unconstitutional a key provision in a California online safety law that would have required news organizations to restrict access to public-interest journalism on issues ranging from the wars in Ukraine and Gaza to gun violence and the opioid crisis.

Last week’s decision by a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit concerned the California Age-Appropriate Design Code Act, which requires certain businesses, including some news organizations, to modify or restrict access to lawful content online that could be accessed by individuals under the age of 18. The panel found that the law’s main requirement — that businesses proactively, as the court put it, “opine on and mitigate the risk that children may be exposed to harmful or potentially harmful materials online” — “facially violates the First Amendment.”

The court’s opinion agreed with arguments made by the Reporters Committee for Freedom of the Press in a friend-of-the-court brief filed earlier this year and joined by 14 media organizations. 

The Ninth Circuit’s ruling came in NetChoice v. Bonta, a constitutional challenge to the CAADCA. Signed into law by California Gov. Gavin Newsom in 2022, the CAADCA requires news organizations, social media companies, and other for-profit businesses that collect customers’ personal information, and meet certain other requirements, to modify their services to mitigate or avoid the risk that children encounter “harmful or potentially harmful” content online — even if that content or the depiction of the conduct is entirely lawful. 

The law specifically mandates that covered publishers prepare a Data Protection Impact Assessment for each “online service, product, or feature” that is “likely to be accessed by children.” The news organizations would then have to consider whether their online content could pose “harm” to minors and take proactive steps to mitigate the harm before making the content available. The law does not define “harm,” leaving the meaning of that term to be determined by regulators.

NetChoice, a tech industry trade group, sued California Attorney General Rob Bonta in late 2022, challenging the constitutionality of the CAADCA. The U.S. District Court for the Northern District of California granted the trade group’s motion for a preliminary injunction, concluding that “the CAADCA likely violates the First Amendment.”

After Bonta appealed to the Ninth Circuit, the Reporters Committee argued in a friend-of-the-court brief that the law imposes unconstitutional content-based restrictions on news publishers and that it violates minors’ First Amendment rights to access news. 

“While the state has a legitimate interest in protecting children’s welfare, sections of the [CAADCA] — both expressly and because of vagueness inherent in other provisions — stray beyond that objective into government interference in constitutionally protected editorial choices,” the Reporters Committee’s brief stated. “Worse, these parts of the law would do so in a way that impairs access by young people and the public at large to news they need to fully participate in civic life.”

The Ninth Circuit panel’s opinion concluded that the law’s DPIA report requirement “falls well short of satisfying strict First Amendment scrutiny,” and that NetChoice was likely to succeed in showing that the requirement “facially violates the First Amendment.”

While the panel affirmed the preliminary injunction tied to the report requirement, it vacated the preliminary injunction with respect to certain other provisions in the law. The panel found that the district court failed to properly consider the facial nature of the challenge to those provisions and that it was premature to determine that they could not be severed from the report requirement that the Ninth Circuit agreed was facially unconstitutional. 

The case now returns to the district court for further proceedings.

The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on Twitter or Instagram.