Calif. Social Media Law Should Be 'Enjoined in Its Entirety,’ Says Chamber of Commerce

The U.S. Chamber of Commerce has a substantial interest in the resolution of NetChoice’s constitutional challenge to AB-2273, California’s social media law, because it “implicates the stability” of the internet economy and “core constitutional rights of participants in that economy,” said the Chamber’s amicus brief Wednesday (docket 23-2969) at the 9th U.S. Circuit Court of Appeals. The brief supports NetChoice’s challenge and affirmance of the district court’s preliminary injunction blocking California Attorney General Rob Bonta (D) from enforcing AB-2273 (see 2309190006).

The Electronic Frontier Foundation, in a separate amicus brief submitted Wednesday with the Center for Democracy & Technology, also in support of NetChoice and the injunction, called for AB-2273 to be “struck down in its entirety because its age verification scheme and vague standards violate the First Amendment.”

AB-2273, if upheld, would “wreak havoc” on the internet, said the Chamber of Commerce brief. Though “nominally” a children’s privacy law, the statute would transform the state into a “roving” internet censor, it said. It would give the AG “unprecedented authority” to regulate any online speech that the government finds potentially harmful, it said.

The statute also would let the AG “prevent speakers from obtaining information to develop and disseminate any message" that California determines to not be in the best interests of children, said the chamber's brief. Such “deliberate content-based regulation of speech violates the First Amendment,” it said.

AB-2273 also is part of a “broader troubling trend” in which states attempt “to justify censoring speech that they dislike by invoking the laudable interest in protecting children,” said the Chamber's brief. The 9th Circuit and other courts “rightly and routinely hold such laws unconstitutional,” it said.

Besides violating the First Amendment, AB-2273 also “flatly conflicts” with the federal Children’s Online Privacy Protection Act, said the Chamber's brief. Through COPPA, Congress created “a nationwide scheme” of children’s privacy regulation that expressly preempts all inconsistent state laws, it said.

AB-2273 is “fundamentally inconsistent” with COPPA because it would impose liability for practices that Congress deliberately didn’t, said the chamber's brief. In doing so, AB-2273 “upsets Congress’ “deliberate balance” and stands as a “substantial obstacle” to Congress’ “carefully drawn scheme,” it said. Since the “bulk” of the statute is unlawful and not severable from any remaining provisions, AB-2273 “should be enjoined in its entirety,” it said.

The EFF and CDT brief urged the the 9th Circuit to hold that AB-2273's age-verification provision “unlawfully burdens adults’ and children’s ability to speak and receive information online.” Key provisions of the statute are “unconstitutionally vague,” said the brief. They prohibit online services’ display of “a variety of protected speech,” such as the news and other users’ speech, that may be “ambiguously” considered harmful to children, it said.

The 9th Circuit should then hold that the remaining provisions of AB-2273, which limit how businesses process the data of children, “are inseverable from the unconstitutional parts,” said the EFF and CDT brief. With no surviving rule regarding how a business is to know a consumer is a child, there’s “no way for a business to implement the law’s data processing limits,” it said.

By affirming the invalidity of the entire statute in this way, the 9th Circuit “will chart a different, narrower path than the district court, which unnecessarily raised questions about the constitutionality of well-crafted privacy laws,” said the EFF and CDT brief. This more focused path “will protect all internet users’ free speech rights,” it said. It also will affirm the constitutionality of “existing well-crafted privacy laws, and guide legislators working to pass future data privacy laws,” it said.