California Social Media Law Can’t Be ‘Squared’ With First Amendment, Says CCIA

The district court correctly held that California’s social media law, AB-2273 likely violates the First Amendment “by attempting to control the information that can be provided to persons under 18,” said the Computer & Communications Industry Association’s amicus brief Tuesday (docket 23-2969) in support of appellee NetChoice and the injunction it won that bars California Attorney General Rob Bonta (D) from enforcing AB-2273 (see 2312140003).

The First Amendment likely prohibits this statute, “just as it barred similar past efforts to censor online speech,” said CCIA’s brief. AB-2273 would “impermissibly restrict” online service providers' speech by forbidding “amorphous and expansive categories” of content that may be deemed "materially” harmful to a child, it said.

To the extent that any of AB-2273's provisions “are even decipherable,” they would “unlawfully restrict the publication and editorial choices of online services,” said the brief. They would also unlawfully restrict the choices that users make via online services, including search engines, social media websites, news publishers, online educational resources and online libraries, it said.

Being all but “impossible to understand,” much less apply in any “consistent or predictable way,” AB-2273 is “hopelessly vague and necessarily overbroad,” said the brief. These flaws render the statute unconstitutional in at least the 10 ways that the district court identified, it said.

AB-2273 also “unlawfully compels speech,” said the brief. It would require nearly all online services to prepare “onerous” data protection impact assessments about controversial topics and to disclose those assessments to state law enforcement officials, it said. It would also require nearly every provider of online services to explain how its algorithms and design features could expose children to harmful content or conduct, it said.

AB-2273 effectively requires publishers to “condemn their own services” in favor of the state's “preferred dogma about contentious social and scientific questions,” said the brief. As such, AB-2273 establishes a regime for compelled speech that can’t be “squared with the First Amendment,” it said. The district court’s injunction barring enforcement of AB-2273 should be affirmed, it said.