Summary
The Ninth Circuit affirmed in part and vacated in part the district court’s preliminary injunction against enforcement of California’s Age-Appropriate Design Code Act. The panel held that NetChoice was not likely to succeed on its facial challenges to the Act’s coverage definition and age-estimation requirement, but affirmed injunctions against certain data-use and dark-pattern provisions on vagueness grounds. The court also vacated the injunction of the Act’s remaining provisions on severability grounds and remanded for further proceedings.
Topics
Practice areas
Questions Presented
- Whether NetChoice was likely to succeed on its facial First Amendment challenge to the CAADCA's coverage definition.
- Whether NetChoice was likely to succeed on its facial First Amendment challenge to the CAADCA's age-estimation requirement.
- Whether the CAADCA's data-use restrictions and dark-patterns restriction were impermissibly vague.
- Whether the CAADCA's valid provisions were volitionally severable from the enjoined notice-and-cure provision.
- Whether the district court abused its discretion in granting the preliminary injunction.
Holdings
- NetChoice was not likely to succeed on its facial challenge to the coverage definition because it failed to develop a record showing the statute's full range of applications and demonstrating that unconstitutional applications substantially outweigh constitutional ones. The coverage definition does not necessarily implicate protected expression in every application.
- NetChoice was not likely to succeed on its facial First Amendment challenge to the age-estimation requirement on the existing record. The court could not determine that the requirement facially violates the First Amendment, much less in a substantial majority of its applications.
- The data-use restrictions and dark-patterns restriction are likely impermissibly vague because they do not clearly delineate the prohibited conduct. The district court properly enjoined those provisions on vagueness grounds.
- The court could not determine at the preliminary-injunction stage whether the notice-and-cure provision was volitionally severable from the CAADCA's valid remainder. The district court's contrary determination was vacated and remanded for further proceedings.
Key quotations
“A facial challenge thus “demands record development on third-party speech and the full scope of a law’s potential applications.”” (15)
“The First Amendment analysis is fact intensive and will surely vary from platform to platform.” (22)
“That strategic decision “comes at a cost.”” (25)
“The critical flaw of the restriction here is that the “what [that] must be proven is . . . vague.”” (37)
“A fundamental requirement of due process is that a statute must clearly delineate the conduct it proscribes.” (41)
“The issue, when assessing volitional separability, is not whether a legislative body would have preferred the whole to the part, but whether a legislative body, knowing that only part of its enactment would be valid, would have preferred that part to nothing.” (42)
Factual background
California enacted the Age-Appropriate Design Code Act to protect the privacy, safety, and well-being of children using online services, products, and features likely to be accessed by children. The Act imposes coverage, age-estimation, data-use, dark-pattern, enforcement, and other obligations on covered businesses, including civil penalties for violations. NetChoice, a trade association whose members include major online technology companies, challenged the Act before it took effect and sought preliminary injunctive relief.
Procedural history
NetChoice challenged the CAADCA on First Amendment, preemption, and Dormant Commerce Clause grounds and obtained a preliminary injunction enjoining the statute in its entirety. In a prior appeal, the Ninth Circuit affirmed the injunction as to the DPIA requirement and provisions not grammatically severable from it, vacated most of the injunction, and remanded for proper facial-challenge and severability analysis. On remand, the district court again enjoined the entire statute, alternatively enjoining seven individual provisions. The Ninth Circuit affirmed the injunction as to the data-use and dark-patterns restrictions, vacated the remainder, and remanded.
Remand instructions
The district court must reconsider the scope and applications of the CAADCA's coverage definition, conduct the required facial-challenge analysis, further consider the age-estimation requirement including the meaning of 'data management practices' and the opt-out language, and reconsider whether the notice-and-cure provision is volitionally severable from the valid remainder. The injunction remains in effect as to the data-use restrictions and dark-patterns restriction.