By Cody Venzke
California Lawyers Association’s Privacy Law Section recently hosted the first of two webinars on litigation regarding California’s Age-Appropriate Design Code, which imposes obligations on online platforms to assess how content, contacts, and conduct on their platforms might harm children.
The June 22 webinar featured plaintiffs who have challenged the constitutionality of the code and amici who support their challenge; a second webinar later this summer will feature voices who support the code.
The first webinar featured Chris Marchese of NetChoice, the plaintiff challenging the code, Adam Sieff of Davis Wright Tremaine, their counsel, and Dana Green of The New York Times, who filed an amicus brief supporting NetChoice’s challenge. The conversation included initial background on the code—including the code’s ten affirmative obligations and eight prohibitions—and online child safety efforts in other states. Following the introduction, Marchese, Sieff, and Green presented the interests that motivated the suit and their amicus briefing; according to the speakers, the code implicates interests around free speech, overbreadth, and editorial freedom.
The conversation then turned toward the substance of the case, awaiting a hearing on NetChoice’s motion for a preliminary injunction. Among the claims briefed for the preliminary injunction, Marchese drew our attention to two—the argument that the code limits platforms’ editorial discretion and that the code’s various obligations constitute a prior restraint. Sieff explained the merits in more detail: the code requires platforms to assess their content before allowing it to be published, to assess new features before deploying them, to record that assessment, and to verify the ages of their users. All of these constitute impermissible restraints on speech prior to publication. Similarly, according to Sieff, the code impermissibly regulates on the basis of the content of speech—in the code’s words, whether it was “harmful” or consistent with platforms’ content moderation policies.
Green noted that the code is not limited to social media—it reaches businesses with services “likely to be accessed by children,” such as The New York Times. She noted that, as applied to online news publications, the code’s prohibition on “harmful” content would require news organizations to alter the content they ordinarily publish—including on controversial but politically and socially significant issues. According to Green, this, too, affected minors’ First Amendment rights to read and listen to constitutionally protected speech.
In closing, the speakers addressed whether it was possible to square First Amendment protections with privacy protections. They unanimously agreed it might be possible and that the Design Code’s flaw lay not in its privacy-oriented provisions but in its focus on content.
A hearing on NetChoice’s motion for a preliminary injunction is scheduled for July 27. Follow the Privacy Law Section’s events page for an announcement about the next webinar.
Cody Venzke is a Senior Policy Counsel for surveillance, privacy, and technology at the American Civil Liberties Union and serves as the Treasurer of CLA’s Privacy Law Section.