Report from the Bloomberg
In Brief – A panel of the Federal Ninth Circuit of Appeals largely upheld California’s “Protecting Our Kids from Social Media Addiction Act”, rejecting a First Amendment challenge from digital company trade group NetChoice. The measure requires social media platforms to use age verification and get parental consent before providing personalized content feeds to users under 18. The panel backed the order from Judge Edward Davila that it was premature to rule on the constitutionality of age checks and that only individual platforms, not NetChoice, could challenge the algorithm restrictions on First Amendment grounds. The ruling cited the concurring opinion of Justice Barrett in last year’s Moody v NetChoice decision which pointed to platform-specific, even algorithm-specific, analysis for First Amendment challenges. The appeals panel did conclude that banning the display of counts of likes and shares was likely unconstitutional, adding to Davila’s decision to strike requiring parental permission for push notifications during certain hours and mandatory annual reporting on how minors use a platform.
Context – States keep passing laws regulating social media sites. Most have been blocked by federal judges for violating the First Amendment, but that trend is increasingly mixed due to a compilation of indecisive Supreme Court decisions in internet-related cases. For example, while five justices in Moody agreed that social media platforms engage in expressive activity strongly protected by First Amendment, the court’s core ruling was to demand that lower courts analyze how digital platform regulations impact a wider range of platforms and Justice Barrett, one of the five, questioned whether some algorithms involve protected speech at all. In 2023, the court unanimously ruled that Twitter was not liable for terrorists misusing their platform, but the court chose not to rule on whether Sec. 230 protected Google’s YouTube algorithms. And the recent ruling on age verification for online pornography is quickly being stretched to cover other online activity, which Justice Kavanaugh says probably violates the First Amendment but nobody can be sure until much more litigation plays out.