Summary
The Ninth Circuit reviewed NetChoice’s appeal from the denial of a preliminary injunction against California’s Protecting Our Kids from Social Media Addiction Act. The court held that NetChoice lacked associational standing for its as-applied challenge to the personalized-feed provisions, that the like-count default-setting provision was likely unconstitutional, and that challenges to the age-verification provisions were unripe. The court reversed and remanded for an injunction against enforcement of the like-count provision, affirming the district court in all other respects addressed on appeal.
Topics
Practice areas
Questions Presented
- Whether NetChoice had associational standing to pursue an as-applied First Amendment challenge to the Act's personalized-feed provisions.
- Whether the Act's like-count default-setting provision is content based and likely unconstitutional under strict scrutiny.
- Whether the Act's private-mode default-setting provision violates the First Amendment under strict scrutiny or intermediate scrutiny.
- Whether NetChoice's as-applied and facial challenges to the Act's future age-verification requirements were ripe.
- Whether NetChoice established that the personalized-feed provisions were facially overbroad.
- Whether the Act was unconstitutionally vague.
- Whether the like-count provision was severable from the remainder of the Act and whether the preliminary-injunction factors supported relief.
Holdings
- NetChoice lacked associational standing to challenge the personalized-feed provisions because determining whether each member's algorithm was expressive and determining the appropriate relief required individualized proof and participation by individual members.
- The Act's prohibition on showing minors the number of likes or other feedback received by a post is content based and therefore subject to strict scrutiny.
- NetChoice was likely to succeed on its challenge to the like-count provision because the provision was not the least restrictive means of advancing California's interest in protecting minors' mental health.
- The private-mode default-setting provision is content neutral, is subject to intermediate scrutiny, and survives that review.
- NetChoice's as-applied and facial challenges to the age-verification requirements were unripe.
- NetChoice failed to establish a likelihood of success on its facial challenge to the personalized-feed provisions because it did not develop a record showing the statute's full range of applications or that unconstitutional applications substantially outweighed constitutional ones.
- NetChoice established a likelihood of success on its facial challenge to the like-count provision but not to the private-mode provision.
- The Act is not unconstitutionally vague because its definitions and exceptions provide fair notice to persons of ordinary intelligence and do not authorize seriously discriminatory enforcement.
- The like-count provision is severable from the remainder of the Act.
- The irreparable-harm, equities, and public-interest factors favored NetChoice as to the like-count provision.
Key quotations
“A platform may show a post to a minor. And it may presumably tell that minor that other users have interacted with it. But it cannot tell the minor the number of likes or feedback that the post has received.” (23)
“In all other respects, we affirm the district court’s denial of a preliminary injunction.” (40)
Factual background
California enacted the Protecting Our Kids from Social Media Addiction Act, which regulates personalized feeds and certain default settings for minors on covered online platforms. The Act restricts minors' access to algorithmic feeds absent parental consent, requires default settings that conceal likes and other feedback metrics, requires private-mode accounts, and will require age determinations beginning in 2027 under regulations not yet issued. NetChoice, an internet trade association whose members include Google, Meta, Nextdoor, Pinterest, and X, challenged the Act facially and as applied to its members.
Procedural history
NetChoice sued California Attorney General Rob Bonta and sought a preliminary injunction against enforcement of portions of the Act. The district court enjoined two provisions not challenged on appeal but otherwise denied preliminary relief, concluding among other things that the age-verification challenge was unripe, the facial personalized-feed challenge lacked an adequate record, the private-mode and like-count provisions passed constitutional muster, and the as-applied personalized-feed challenge could not be pursued through associational standing. The Ninth Circuit affirmed in part, reversed the denial of an injunction as to the like-count provision, and remanded for modification of the injunction.
Remand instructions
The district court must modify its injunction and enter an order enjoining enforcement of the Act's like-count default-setting provision. In all other respects, the denial of a preliminary injunction is affirmed.