It\u2019s only been a couple of weeks since the Supreme Court issued its opinion on a pair of social media cases<\/a> this term, but it\u2019s already making a splash in arguments over other tech laws being challenged by the industry.<\/p>\n<\/div>\n Lawyers and judges for the Ninth Circuit Court of Appeals in California repeatedly referenced the Supreme Court\u2019s opinion in Moody v. NetChoice<\/em> and NetChoice v. Paxton <\/em>during oral arguments in two different cases on Wednesday. The cases before the Ninth Circuit, NetChoice v. Bonta<\/em> and X v. Bonta<\/em>, concern two different California laws regarding kids online safety and tech company disclosures (Rob Bonta is California\u2019s attorney general, charged with enforcing the laws).<\/p>\n<\/div>\n The arguments gave an early look into how the SCOTUS decision could impact how courts across the country consider what kinds of tech legislation are constitutional and what kinds might unduly impact speech. Though the Supreme Court did not rule on the merits of the Texas and Florida laws at issue in the NetChoice<\/em> cases \u2014 which generally sought to prevent online platforms from discriminating against content of different viewpoints, stemming from many conservatives\u2019 concerns of online censorship \u2014 the majority opinion did lay out a roadmap for how the justices view the First Amendment\u2019s applicability to content moderation. In general, the justices said that compiling and curating content is an expressive act, one protected by the Constitution.<\/p>\n<\/div>\n Experts predicted after the ruling<\/a> that it would have a wide impact on the scope of tech regulations across the country, including on topics like kids online safety and transparency, which are the core themes at issue in the laws before the appeals court this week. In the first case, NetChoice v. Bonta<\/em>, the panel of judges grappled with what the SCOTUS decision would mean for how closely they needed to parse the text of the statute at issue: the California Age-Appropriate Design Code<\/a>. The law requires online platforms likely to be accessed by kids to install the highest level of privacy settings by default, assess how their features could harm young users, and develop a \u201ctimed plan\u201d to mitigate those risks. <\/p>\n<\/div>\n NetChoice, the tech industry group that brought both of the challenges that ended up before SCOTUS and also challenged the California law, had brought its cases as facial challenges. That means it was arguing the laws are unconstitutional in any scenario, rather than in limited applications of the statutes.<\/p>\n<\/div>\n The justices in Moody<\/em> said the lower courts in the Texas and Florida cases failed to perform the necessary analysis for that kind of challenge and made clear that there\u2019s a relatively high bar for determining a law is facially unconstitutional in this way. Attorney Kristin Liska, arguing on behalf of the California attorney general before the Ninth Circuit, pointed out that NetChoice brought a facial challenge to the Age-Appropriate Design Code, too, \u201cand Moody<\/em> is clear that when analyzing a facial challenge, the question is, do the unconstitutional applications substantially outweigh the constitutional?\u201d<\/p>\n<\/div>\n Robert Corn\u2010\u200bRevere, arguing on behalf of NetChoice, said that the Supreme Court\u2019s decision doesn\u2019t impact its facial challenge in the California case. \u201cI think it confirms that facial challenges in the First Amendment context are allowable when a substantial number of the applications of the law are unconstitutional compared to its plainly legitimate sweep,\u201d Corn-Revere said.<\/p>\n<\/div>\n The judges seemed to wrestle with how to figure out how much of the law was constitutional or not and whether any pieces could be salvaged if some parts were struck down. In particular, the judges asked whether the law could survive without the provision requiring tech companies to provide a Data Protection Impact Assessment (DPIA), which would require platforms to create reports on how their product designs or features might harm kids. The district court, which granted a preliminary injunction blocking the law<\/a>, said the DPIA<\/a> would likely \u201ctrigger First Amendment scrutiny.\u201d<\/p>\n<\/div>\n \u201cThe judges seemed to wrestle with how to figure out how much of the law was constitutional or not.\u201d<\/p>\n<\/div>\n<\/div>\n The judges appeared to want to understand how to analyze the rest of the law if they agreed the DPIA requirement was likely unconstitutional. They asked about how to consider whether the DPIA could be severed from the other provisions in the statute, versus how to do a facial analysis of whether the law would always be unconstitutional. <\/p>\n<\/div>\n Judge Milan Smith asked if the court could \u201cjust attack or deal with that one portion of it, and not deal with the other,\u201d should it disagree with how the district court analyzed the law as a whole. Judge Anthony Johnstone seemed open to the idea that the part of the law requiring platforms to estimate the age of its users could be constitutional. \u201cThere\u2019s no legitimate sweep to asking a company to estimate the age of its consumers for purposes of non-content-based safety regulations?\u201d Johnstone asked NetChoice\u2019s Corn-Revere. <\/p>\n<\/div>\n \u201cThere\u2019s no legitimate sweep to asking a company to estimate the age of its consumers for purposes of non-content-based safety regulations?\u201d<\/p>\n<\/div>\n<\/div>\n \u201cAll of these regulations are tied to the content-based determination whether or not this is safe,\u201d Corn-Revere answered. He said that the factors of the DPIA determine \u201cwhy you impose the age determination\u201d in the first place.<\/p>\n<\/div>\n Smith said he thinks that leaves the panel \u201cwith the same problem the Supreme Court dealt with in Moody\u201d <\/em>because besides the DPIA, he said, the rest of the law needs to be analyzed on a case-by-case basis of how it would apply to different kinds of platforms.<\/p>\n<\/div>\n Corn-Revere requested the chance for additional briefings \u201cif the court is inclined to have doubts about whether or not this is subject to a facial overbreadth challenge,\u201d since the SCOTUS decision came out after the California district court blocked the Age-Appropriate Design Code.<\/p>\n<\/div>\n In the second set of arguments in X v. Bonta<\/em>, lawyers argued over the validity of California\u2019s AB 587, a bill that requires social media companies to submit reports to the state AG about its terms of service and content moderation policies. In that case, the judges asked about how the Supreme Court\u2019s discussion of a different precedent in the Moody<\/em> decision \u2014 Zauderer v. Office of Disciplinary Counsel \u2014<\/em> would apply. Zauderer<\/em> says that the government can compel commercial speech<\/a> in the form of disclosures \u201cas long as disclosure requirements are reasonably related to the State\u2019s interest in preventing deception of consumers.\u201d<\/p>\n<\/div>\n When it comes to disclosure requirements, Johnstone asked, \u201cWhy would we welcome a circuit split on something where it seems like Florida, Texas, and California are all agreed on and the Supreme Court has left alone?\u201d<\/p>\n<\/div>\n \u201cWhy would we welcome a circuit split on something where it seems like Florida, Texas, and California are all agreed on and the Supreme Court has left alone?\u201d<\/p>\n<\/div>\n<\/div>\n X\u2019s attorney, Joel\u00a0Kurtzberg, said that ignores the \u201cmain distinction\u201d between the California law and those in Texas and Florida, which he said involves specific controversial categories of content. Even if that part was cut out from the law, Kurtzberg said, \u201cthere\u2019s very little left\u201d to the requirements.<\/p>\n<\/div>\n Kurtzberg also argued that \u201cZauderer<\/em> does not apply if the speech is not purely factual and controversial,\u201d and in the case of AB 587, \u201cthe law is intended to require disclosures about the most controversial content topics, the decisions that raise the most controversy, and it is also clear that it is designed to pressure the companies to change their policies.\u201d<\/p>\n<\/div>\n<\/div>\nFresh difficulties in litigating \u2018facial challenges\u2019<\/h3>\n<\/p>\n
When the government compels commercial speech<\/h3>\n<\/p>\n