On December 20, 2023, TZ filed an amicus brief in the U.S. Court of Appeals for the Ninth Circuit on behalf of a group of scholars who have published extensively on the First Amendment, regulation of addictive technologies, digital product design laws, and public and children’s health in the digital age in Netchoice, LLC v. Rob Bonta, Attorney General of the State of California. The case presents a First Amendment challenge to California’s Age-Appropriate Design Code (AADC), one of the nation’s first laws regulating the design features of digital products like social media platforms and websites that harm children. This high-profile appeal will have broad impacts because it is one of the first cases requiring a federal appellate court to apply the First Amendment to regulations of the functional characteristics of online platforms.
The brief draws on the scholars’ extensive research and thought leadership to set forth the proper legal framework for applying the First Amendment to the AADC’s design provisions. The amici explain that for a quarter-century, courts across the country have upheld digital product design regulations, and they urge the Ninth Circuit to reject a sweeping rule imposing heightened First Amendment scrutiny to any regulation touching digital products or the Internet. They argue that the existing First Amendment framework fits such regulations well, and there is thus no need to give online businesses special First Amendment treatment or craft categorical judge-made rules just for them.
The AADC is an important step in protecting children’s health and well-being in the digital age. It regulates the functional design characteristics of digital products like websites and social media platforms, ensuring that they are age-appropriate and do not contain features that do not harm children, such as inducing them to engage in compulsive and addictive behavior. The amici argue the AADC’s design provisions do not implicate the First Amendment because they target conduct, not expressive activity, and do not restrict expressive activity or discriminate against online businesses based on who is speaking or the content they express. Further, they illustrate how adopting a categorical rule like the one Netchoice seeks would gravely impair States’ ability to protect children from emerging threats and addictive technologies.
Partner Hassan Zavareei and Appellate Chair Glenn Chappell are counsel for the amici, who include distinguished scholars Lawrence Lessig, Zephyr Teachout, Tim Wu, Susan Benesch, Brett Frischmann, Gaia Bernstein, Kyle Langvardt, among others.
The case is Netchoice, LLC v. Rob Bonta, Attorney General of the State of California, Case No.: 23-2969 in the United States Court of Appeals for the Ninth Circuit.