9th Circuit Judges Ask How to Assess California AADC

The AADC, also known as AB-2273, requires tech companies to install guardrails on their apps and websites for users younger than 18.

In March, Judge Beth Labson Freeman of the U.S. District Court for Northern California ruled in the AADC was content-based in case 5:22-cv-08861 (see 2503130063). The next month, Attorney General Rob Bonta (D) appealed to the 9th Circuit (see 2504140058), where it became case 25-2366.

The law's “coverage definition refers to six separate indicators [of] whether an online service is likely to [be accessed] by children,” Judge Milan Smith told Kristin Liska, a deputy attorney general for California DOJ, during Thursday's session. “In your view, should the district court have assessed each indicator separately?”

Liska responded that it depends on the type of challenge that plaintiffs make. In this case, “a problem with one specific” aspect of the AADC would fall under an as-applied challenge, not the invoked facial challenge.

“As I look at it, [with] the indicators [in the Act], some are content-based, some are neutral,” Judge Smith replied. “So how should we treat the district court's injunction as to the entire [California law] on the basis of a gateway coverage definition?”

Liska said that the first step should be whether the First Amendment is even triggered, and “several of those applications” of the Act will mean “a business would be subject to the statute for reasons that have nothing to do with their expressive activity.”

Smith asked Liska to clarify: “As the state is concerned, it doesn't bother you that arguably some of these indicators are content-based, where others are content-neutral?”

But Liska responded that “if plaintiffs wanted to challenge a specific prong … we might focus analysis on a specific indicator, but plaintiffs are seeking to enjoin the full statute based on the entire definitional provision,” which means the court must “look at the whole aspects of what everything is doing, rather than focus on one indicator.”

Judge Mark Bennett asked whether the state’s position is that “none of [the AADC's prongs] regulate speech” and are all content-based, or since NetChoice “didn't make that argument,” the state doesn't “have a specific answer to that question?”

The Act’s “definition of ‘likely to be accessed by children’ neither regulates speech itself,” nor do “all of the different indicators looked at together … trigger First Amendment scrutiny,” Liska said. “The error lies” with the fact that the lower court didn't rule one provision of the law violates the First Amendment, but that the whole statute did, she added.

Asked Judge Anthony Johnstone, “So if we're forced to answer the question of whether ... ‘likely to be assessed by children’ is facially unconstitutional because it's content-based, our answer has to be no?”

Liska said that was the state’s understanding.

Johnstone also said that “the data use and dark patterns requirements ran into trouble on vagueness grounds,” and asked how a vagueness challenge would be addressed if it pertained to one aspect of the law only.

Liska responded that the court must “look to what it is that [the plaintiffs] wish to enjoin and ask how that particular provision meets the necessary test that is applied to it.” She added that the state “would argue that those provisions are not vague,” as “there is a clear understanding” of the phrase “materially detrimental” in the statute. If using a child’s data in a specific way is known to “cause harm to this child,” the Act applies, she said.

NetChoice Disagrees

But Davis Wright lawyer David Gossett, representing NetChoice, asserted that the coverage definition in the AADC is “a unitary definition,” and cannot “be subdivided out.” The court must “look at all six of those” aspects of the law together to find it constitutional or unconstitutional.

Asked by Bennett to explain, Gossett said one reason is that there's no severability clause, and another is that each of the indicators in the law are “all factors that ... each go to the determination of whether a service is or is not” subject to the Act.

Johnstone pointed out this presents the issue of the facial challenge, as outlined by Moody v. NetChoice, “more straightforwardly.” The Moody analysis requires a two-step analysis: defining the law’s scope and then determining which applications violate the law and measuring them against the rest (see 2504180013).

But Gossett said NetChoice is “not challenging the coverage definition directly,” but instead “the coverage definition because it then imposes … speech-based burdens of the rest of the law on covered services or non-covered services.”

If the AADC “just said that all businesses with terms of service in the state of California shall enforce their rules, how is that content based?” asked Johnstone.

Gossett responded that NetChoice's argument, which the district court agreed with, “limited the challenge on the denominator of the Moody analysis,” such that it only had to do with the Terms of Service “about the presentation of material to children, not about other things.” He added that “within that scope, every application was content based and a restriction on our First Amendment rights.”

“Our coverage definition challenge falls in every application [of the AADC], because the coverage definition triggers burdens … differently based on speech,” said the Davis Wright lawyer. The district court judge “differentiated, in her opinion, between the facial challenges to individual provisions and the facial challenges to the coverage definition.”

NetChoice voiced optimism about winning in a news release before the argument. “California cannot force websites to disseminate only the speech it approves of, and it cannot restrict the methods of sharing that speech to match its view of what is ‘best,’” said Paul Taske, co-director of the NetChoice Litigation Center. “By conscripting websites to do California’s dirty work, the Speech Code not only violates the First Amendment but undermines websites’ own security efforts making Californians of all ages less safe.”

In August, a bevy of entities filed amicus briefs blasting the AADC for burdening the First Amendment and infringing on privacy (see 2508220017).

NetChoice sued the state over the AADC in December 2022. Freeman granted a preliminary injunction against the law in September 2023 (see 2508220017). Bonta appealed, but the 9th Circuit ruled in favor of the trade association in August 2024, remanding the case to the district court (see 2408160015).