California’s Social Media Bill Flies In The Face Of The First Amendment

from the you-can-protect-children-without-infringing-on-the-1st-amendment dept

California has officially joined the growing list of states attempting to regulate how social media companies run their platforms. The state’s proposed legislation, however, faces a major legal obstacle: the Constitution.

California lawmakers are marching ahead with AB 2408, the Social Media Platform Duty to Children Act. On June 28, the Judiciary Committee unanimously passed an amended version of the bill, tweaking several provisions. Next, AB 2408 must pass the Senate Appropriations Committee and the California Senate before governor Gavin Newsom may sign the bill into law.

AB 2408 would impose a duty on social media platforms to avoid addicting minor users. Although protecting minors is a noble cause, regulating how social media design their services likely violates the First Amendment, which protects platforms’ right to curate content based on their editorial discretion.

As with most bills, the devil’s in the details. AB 2408’s structure and prohibitions would limit platforms’ abilities to arrange and moderate content for minors.

AB 2408 defines “Addict” as the act of “knowingly or negligently caus[ing] addiction through any act or omission.” The bill defines “Addiction” as “use of one or more social media platforms” resulting in “preoccupation or obsession with, or withdrawal or difficulty to cease or reduce use” in addition to “physical, mental, emotional, developmental, or material harms to the user.”

The bill allows the Attorney General to sue social media platforms for implementing “a design, feature, or affordance” which leads to addiction. To prevail under AB 2408, a plaintiff must prove that a minor “became addicted and was therefore harmed,” that a design or feature on the platform “was a substantial factor” in the addiction, and that it “was reasonably foreseeable” that the design or feature would lead to addiction.

A recent amendment removed a private right of action which would have allowed minor users and parents to sue platforms directly. Lawmakers also changed the definition of “social media platform.” The amendments, however, do little to change the bill’s constitutionality.

In short, AB 2408 aims to prohibit social media platforms from building features which the platforms know, or ought to know, will result in “addiction” for minors.

In general, social media platforms design features to make their platforms more useful or enjoyable. For example, any internet platform worth its salt uses algorithms to display, recommend, and tailor content based on a user’s browsing activity and interests. By restricting how social media companies build and use these features, AB 2408 interferes with their editorial discretion by limiting how platforms display and amplify content.

AB 2408 appears less objectionable than the social media regulations currently brewing in Texas and Florida, which are geared towards forcing platforms to host conservative content. Ultimately, however, all three bills seek to regulate how social media platforms moderate content. It’s unlikely these bills withstand First Amendment challenges.

Texas’s and Florida’s social media bills are already running into trouble in court. On May 31, the Supreme Court suspended Texas’s HB20, reimposing a preliminary injunction on enforcement of the legislation.

Just eight days earlier, the U.S.federal Court of Appeals for the Eleventh Circuit held that Florida’s social media bill violates the First Amendment. Circuit Judge Kevin Newsom explained: “Put simply, with minor exceptions, the government can’t tell a private person or entity what to say or how to say it.”

The court concluded that social media platforms’ “‘content-moderation’ decisions constitute protected exercises of editorial judgment, and that the provisions of the new Florida law that restrict large platforms’ ability to engage in content moderation unconstitutionally burden that prerogative.”

Proponents of AB 2408 argue that the bill only regulates business conduct, not speech. But limiting platforms’ abilities to build features used to display content implicates their constitutionally protected editorial judgment.

In Reno v. ACLU, the Supreme Court applied the First Amendment to the Internet, striking down provisions of the 1996 Communications Decency Act which criminalized the intentional transmission of “obscene or indecent” messages and information depicting or describing “sexual or excretory activities or organs” in an “offensive” manner. The Court found “no basis for qualifying the level of First Amendment scrutiny that should be applied to” the Internet.

Twenty years earlier, in Miami Herald v. Tornillo, the Supreme Court held that the government cannot regulate a newspaper’s “choice of material” or “the decisions made as to limitations on the size and content of the paper.”

Social media features designed to display content to users are analogous to newspaper editors dictating the size and content of their paper. Just as it protects newspapers, the First Amendment likely limits California’s authority to punish Internet platforms for their editorial decisions related to displaying and arranging content on their services. Consequently, AB 2408 faces the same First Amendment roadblocks as the Texas and Florida bills.

Protecting children is important. That’s undeniably true. Lawmakers, however, must pursue these policy objectives within the confines of the Constitution.

Andy Jung is a Legal Fellow at TechFreedom, a non-profit, non-partisan think tank focused on technology law and policy. Andy received his law degree from Antonin Scalia Law School in Arlington, VA. Before law school, Andy worked for software startup companies in California.

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Comments on “California’s Social Media Bill Flies In The Face Of The First Amendment”

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nerdrage (profile) says:

it's parents' responsibility...

Parents should keep their kids off social media if they think it’s so toxic. When the kids grow up, it becomes their own responsibility.

Defusing social media is so simple. Just get off it. No users, no ads, no revenue, companies go under, the end.

So people, get working on this solution. We did just fine before social media existed, we’ll do just fine without it. Not listing to any whining on the topic till this happens.

This comment has been flagged by the community. Click here to show it.

Anonymous Coward says:

Re: Re:

Firstly, source criticism is a valid criticism. And if Mike published something from a contributor linked to Young Voices, I’m very sure he’s at least scrutinized it.

With that said, I am more surprised it’s a decent article, even if it’s just stating the obvious. Stopped clock, etc, but still, surprising.

This comment has been flagged by the community. Click here to show it.

Anonymous Coward says:

Not every decision is an editorial one...

From the analysis of the bill authored by a Professor of Constitutional Law and Law and Technology:

The Likelihood Of A Facial Constitutional Challenge Succeeding Is Particularly Low Against AB 2408: Addiction Is Not Speech, The State Has A Compelling Interest In Protecting Children, And It Is Content Neutral.

A. Addiction is not speech.

The Supreme Court has long distinguished between speech, which is protected by the First Amendment, and conduct, which is not. For instance, taking photographs is a form of protected speech, but entering onto someone else’s property to take photographs is not speech; it is conduct.

AB 2408 regulates conduct, not speech. It is the act of addicting children that is prohibited. Under the bill, social media companies can say whatever they want via their algorithms, so long as it does not result in the act of addicting. Words that are the trigger of action, such as with incitement, solicitation and threats, have no protection whatsoever under the First Amendment. Falsely shouting fire in a crowded theatre is conduct, not speech. Similarly, just because the act of addicting a child is initiated by an algorithm does not turn that conduct into protected speech.

B. The State has a compelling interest in protecting children.

Moreover, an additional hurdle to any successful litigation against AB 2408 on its face would be that courts have acknowledged that First Amendment rights of adults cannot be used as a rationale for endangering children. In New York v. Ferber (1982) 458 U.S. 747 a unanimous Court held that the First Amendment does not protect child pornography. This is in part because there is a longstanding recognition that, while there is of course a foundational First Amendment right of freedom of expression, it also “is evident beyond the need for elaboration that a State’s interest in ‘safeguarding the physical and psychological well-being of a minor’ is ‘compelling.’” Globe Newspaper Co. v. Superior Court (1982) 457 U.S. 596, 607. “A democratic society rests, for its continuance, upon the healthy, well-rounded growth of young people into full maturity as citizens.” Prince v. Massachusetts (1944) 321 U.S. 158, 168.

C. AB 2408 does not favor one view over another.

Yet another barrier to a court concluding that AB 2408 would be facially unconstitutional is that it is content neutral; that is, it does not favor one point of view or ideology over another. As the Supreme Court observed in Ward v. Rock Against Racism (1989) 491 U.S. 781, “the principal inquiry in determining content neutrality, in speech cases generally . . . is whether the government has adopted a regulation of speech because of disagreement with the message it conveys.” As addiction is not speech, disfavoring addiction – whether caused by tobacco, heroin, alcohol, or social media – is not regulating a point of view, violating the First Amendment.

II. First Amendment Facial Challenges Brought By Commercial Entities Are Hard To Win.

By arguing that the bill would as presented to the Legislature is unconstitutional, the opposition is arguing that it is unconstitutional “on its face,” meaning the plain text is unconstitutional. First, the First Amendment doctrine that permits statutes to be struck down
for being overbroad “does not apply to commercial speech.” Village of Hoffman Estates v. Flipside (2008) 455 U.S. 489, 490. Second, recent Supreme Court authority has signaled a retreat from embracing such challenges, expressing a preference to rule on such matters in so-called “as-applied” cases. (See, e.g., Wash. State Grange v. Wash. State Republican Party (2008) 552 U.S. 442 where the Court noted that facial challenges “often rest on speculation,” and it asserted that invalidating a statute before it takes effect could “short circuit the democratic process.”) For this reason alone, it is more likely than not that a facial challenge to AB 2408 would fail.

Naughty Autie says:


When the cost of protecting children is adults being unable to access legal content, protecting children needs to take a back swat as the goal. Besides, parents were fully capable of protecting their own kids until nanny governments encouraged them to no longer do so by offering to do that job for them. “Don’t worry about your kids, we’ll pass laws to protect them.”

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