113 F.4th 1101
9th Cir.2024Background
- The California Legislature enacted the California Age-Appropriate Design Code Act (CAADCA) in 2022 to enhance online privacy protections for children under 18 and require child-friendly design of online products.
- NetChoice, a trade association representing online businesses, challenged CAADCA on First Amendment and federal preemption grounds, among other claims.
- The District Court granted a preliminary injunction, finding that several CAADCA provisions likely violated the First Amendment by compelling speech and were not severable from the remainder of the law.
- On appeal, the Ninth Circuit considered whether NetChoice was likely to succeed on its First Amendment facial challenge to CAADCA and whether the enjoined provisions were severable.
- The Ninth Circuit affirmed the injunction only as to CAADCA’s provisions requiring covered businesses to opine on and mitigate risks of harm to children (the DPIA report requirement) and those not grammatically severable from them, but vacated the remainder of the injunction.
- The court remanded for further proceedings, emphasizing the need for a more developed record regarding the other challenged provisions’ facial constitutionality and severability.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| DPIA report provision compels speech | NetChoice: Compels businesses to opine on controversial content, violating right to refrain from speech | Bonta: Requirement is incidental, does not compel a message, used for privacy management | Requirement compels speech and triggers strict scrutiny under the First Amendment; likely unconstitutional |
| Level of scrutiny for compelled speech | NetChoice: Compelled speech on controversial, non-commercial matters requires strict scrutiny | Bonta: Merely commercial, so only intermediate scrutiny applies | Strict scrutiny applies because requirement goes beyond commercial speech |
| Narrow tailoring/least restrictive means | NetChoice: State could achieve objectives by less restrictive voluntary measures | Bonta: Mandates are necessary for effective protection | Requirement not narrowly tailored; less restrictive alternatives exist |
| Severability of unconstitutional provisions | NetChoice: DPIA requirement renders all related provisions inseverable; affect core function | Bonta: Some parts function independently, can be severed | Only the grammatically inseverable sections are enjoined at this stage; remainder remanded for further analysis |
Key Cases Cited
- Sorrell v. IMS Health Inc., 564 U.S. 552 (First Amendment applies to data and information regulations)
- Wooley v. Maynard, 430 U.S. 705 (First Amendment protects right not to speak)
- 303 Creative LLC v. Elenis, 600 U.S. 570 (Compelled speech subject to strict scrutiny)
- Central Hudson Gas & Elec. Corp. v. Public Service Comm’n of New York, 447 U.S. 557 (Intermediate scrutiny for commercial speech)
- Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S. 781 (Level of scrutiny based on nature/effect of compelled statement)
- Brown v. Ent. Merchants Ass’n, 564 U.S. 786 (State’s power to regulate children’s access to speech is limited)
- Americans for Prosperity Found. v. Bonta, 594 U.S. 595 (First Amendment applies to compelled disclosure to government)
- United States v. Playboy Ent. Grp., Inc., 529 U.S. 803 (Strict scrutiny applies to content-based speech restrictions)