Calif.’s AADC ‘Unconstitutional for Multiple Reasons’: NYT Amicus Brief
California’s Age-Appropriate Design Code (AADC) “unconstitutionally infringes” news organizations’ and minors’ First Amendment rights, said the New York Times Co. and Student Press Law Center in an amicus brief Monday (docket 5:22-cv-08861) in U.S. District Court for Northern California in San Jose in support of the injunction NetChoice seeks to block the social media design law from taking effect in July 2024 (see 2303130003).
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Though the AADC was introduced to address public concerns about young people’s data privacy online, the statute, as enacted, “goes well beyond regulating data to also regulate online speech and expressive conduct,” said the brief. The AADC requires that websites identify and mitigate or eliminate risks that users under age 18 will encounter content, conduct or advertising that may be harmful or potentially harmful, “even if that content or conduct is entirely lawful,” it said. Websites that fail to adequately identify and mitigate any such risks to children “may be subject to very significant financial penalties,” it said.
The “clear and natural effect” of the AADC is that online publishers, including mainstream news websites, “either must submit to content-based regulation, or they must substantially curtail young people’s access,” said the brief. It consequently has the effect of “limiting news organizations’ ability to make their news content available to minors online,” it said. It also limits “young people’s access to lawful content and fully participate in public life,” it said.
Though the AADC’s “stated aim,” to advance the welfare of children, is a laudable one, the AADC “does so in ways that are unconstitutional,” said the brief. It would do “real harm” to the First Amendment rights of minors and to news organizations and “should be enjoined,” it said.
The AADC is drafted in “expansive language” that will affect “almost all online services and products, including news organizations,” said the brief. Since the AADC applies to any for-profit business that collects consumers’ personal information and earns more than $25 million in gross annual revenue, the “low revenue threshold subjects even local and regional news publishers” to the statute, it said.
Any “subject businesses” that offer services or products, such as news content, that are likely to be accessed by children must come into compliance with the AADC, said the brief. The AADC’s “terms are themselves defined expansively,” it said. “Most news websites are likely to fall within these expansive definitions,” it said. “Almost all news organizations offer content that could be deemed of interest to children.”
As applied to online news publications, the AADC “is unconstitutional for multiple reasons,” said the brief. The AADC requires that online publishers “modify their services to mitigate or avoid the risk that children encounter potentially harmful content -- even if the content is entirely lawful,” it said. But the U.S. Supreme Court made “abundantly clear that outside of narrow categories like incitement to violence or obscenity,” government generally has no power to restrict expression because of its message, its ideas, its subject matter, or its content, it said.
The AADC also is unconstitutional because its vaguely defined terms don’t enable online publishers “to anticipate what speech or services may or may not be penalized,” said the brief. The AADC “repeatedly instructs” that organizations must identify and mitigate or eliminate harms or potential harms” to those under 18, it said. But what content or conduct might be harmful or potentially harmful is left to the state to determine, it said: “The opportunity for abuse is obvious here.”