California age verification rules can’t violate the constitution until they’re written

California’s law barring social media companies from serving children “addictive feeds” and setting up age verification starting in 2027 has been upheld in a federal appeals court.

The challenge had been filed by social media and tech platform lobby group NetChoice. The group alleged California’s Protecting Our Kids from Social Media Addiction Act overreaches the government’s authority, is too vague and violates the free speech rights enshrined in the First Amendment of America’s constitution.

The 9th Circuit Court of Appeals largely, but not entirely upheld the Act. A requirement for children’s accounts to have a default setting to not show likes and comments on posts was struck down, on grounds that it “is not the least restrictive way to advance California’s interest in protecting minors’ mental health,” Circuit Judge Ryan Nelson wrote in the ruling (shared by EPIC).

Furthermore, the age assurance requirements the Act will impose are not actually endorsed or upheld, but rather declared beyond the allowable scope of the current lawsuit.

California’s Attorney General is required to define the regulatory expectations for age verification by January 1, 2027. Pending those, courts are not able to determine how much speech will be affected. NetChoice alleged impacts to the free speech of the people who use its members services, but the organization has no claim to represent those users, who “must raise their own challenge” for it to be admissible in court.

For a specific or “as-applied” challenge to be “ripe” before the injury is suffered, the complaint must refer to actions “proscribed by the state.” This does leave the door open for a new challenge once those actions have been proscribed in the AG’s guidance.

The “facial,” or general constitutional challenge raised by NetChoice was rejected for the same reason.

“Without knowing what age-verification the Act will require, we cannot determine whether those procedures unconstitutionally chill the speech of users,” Nelson wrote in his opinion. “Nor can we determine whether the requirements are unconstitutional in a substantial number of their applications. That is especially true if, as the district court found, NetChoice members can verify users’ age in the background without requiring user input.”

Amicus briefs from the CCIA, CDT and EFF backed the tech industry position, suggesting that the age verification requirement should doom the entire Act, and that social media good for children.

Article Topics

age verification  |  California  |  children  |  lawsuits  |  Netchoice  |  social media  |  United States