Calif.’s AB-2273 Would Upend Internet’s ‘Bustling Marketplace of Ideas,’ Says Amicus Brief

The Chamber of Progress, CTA and six other nonprofits support the development of features to keep kids safe online, but they’re concerned that California’s Age-Appropriate Design Code Act, AB-2273, “restricts websites from exercising their First Amendment rights to moderate content,” said their amicus brief Wednesday (docket 23-2969) in the 9th U.S. Circuit Court of Appeals. The brief supports NetChoice and affirming the district court's preliminary injunction that bars California Attorney General Rob Bonta (D) from enforcing AB-2273 (see 2309190006).

The groups support the development of features “to keep kids safe online,” such as applications that exclude age-inappropriate content and tools that permit parental supervision, said their brief. But they worry that AB-2273 “jeopardizes healthy and safe online communities, particularly those home to marginalized voices,” it said. Other groups contributing to the brief were LGBT Tech and the Trevor Project, described as the leading U.S. LGBTQ youth crisis intervention and suicide prevention organization.

The internet has "flourished" under the strong First Amendment protections affirmed in the U.S. Supreme Court’s 1997 decision in Reno v. American Civil Liberties Union, said the brief. Websites today publish an endless multitude of content, offering diverse perspectives and ideas, “shining in technicolor for anyone to access at the click of a button or tap of a screen,” it said.

AB-2273 would completely upend “this bustling marketplace of ideas,” said the brief. Though framed as a privacy statute, AB-2273 “fundamentally regulates speech,” it said. It would impose “an arbitrary system of prior restraints,” and restrict speech based on content, viewpoint and speaker, forcing websites to “ban and block any content that someone might consider inappropriate for children,” it said.

Websites under AB-2273 would also be forced to employ “privacy-invasive” age-verification methods, creating a major privacy risk “at odds with California’s purported aims,” said the brief. Upholding the law, as AG Bonta asks the 9th Circuit to do, would invite other states to adopt speech-based restrictions on websites, “fracturing” the internet as each state pursues its own agenda regarding what is considered safe for children, it said. Equally concerning is the potential for a single state “to be left to dictate” national internet policy in an effort to resolve “this fractured array of state laws,” it said.

AB-2273 is likely to lead to “substantially more harm than it prevents,” disproportionately harming marginalized groups like women, communities of color, LGBTQ+ individuals and religious minorities, said the brief. As one example, discussion of or access to reproductive and sexual health information “may be blocked as being potentially harmful," it said. Californians would need to wait until they turn 18 to access vast amounts of information available to other American minors, it said.

Even then, they would have their access “conditioned on compliance with invasive age-verification measures,” said the brief. AB-2273's “vague standards” will also “dampen” diverse content, denying marginalized groups an effective voice and access to critical resources, it said. The statute’s privacy harms “will most acutely affect marginalized groups,” which often rely on websites’ strong privacy and speech protections, it said.

Though protecting children’s online privacy is a crucial policy goal, that doesn’t give states “license to adopt sweeping measures that run roughshod over the First Amendment,” said the brief. To maintain the internet’s "vibrancy and diversity," the 9th Circuit should affirm the district court’s injunction blocking enforcement of AB-2273, it said.