ACLU Cheers Ninth Circuit Decision to Block Content-Based Provisions of California Age-Appropriate Design Code Act

SAN FRANCISCO — The Ninth Circuit Court of Appeals today blocked several provisions of the California Age-Appropriate Design Code Act (CAADCA) that impermissibly and unconstitutionally placed content-based burdens on speech. The court agreed that, though framed as a way to protect children’s privacy online, the provisions of the law that deputized private actors to censor “harmful content” online violate the First Amendment. It also made clear that non-content-based consumer privacy protections often do not violate the constitution.

The American Civil Liberties Union and ACLU Foundation of Northern California had filed an amicus brief explaining that these CAADCA provisions violate the First Amendment by burdening people’s online speech and restricting platforms’ editorial discretion. The ACLU had also urged the court to leave the door open to upholding other consumer privacy laws against future First Amendment challenges.

“Legislators around the country are understandably concerned with the privacy, well-being, and safety of children, but censorship is not the answer,” said Vera Eidelman, senior staff attorney with the ACLU Speech, Privacy, and Technology Project. “As the court made clear today, government efforts to protect kids from ideas that it thinks are dangerous for them can in fact harm children. They can block access to online mental health resources; curtail reporting about school shootings, war, climate change, and teen suicide; and even censor young people’s own speech online.”

The CAADCA required businesses to assess and mitigate their potential to expose users to “potentially harmful” content online, including through design features. The Ninth Circuit agreed with the ACLU’s argument that this requirement could restrict access to, for example, young people’s expressions of grief or disappointment, and could also burden other speech that benefits young people.

In addition, the court recognized that several of the CAADCA’s other provisions, including requiring data minimization and setting the highest privacy protections by default, are likely constitutional. It sent the case back to the lower court to assess several of the law’s provisions in more detail, while highlighting that consumer privacy protections that do not turn on content can satisfy First Amendment scrutiny.

“We need stronger privacy laws to protect people of all ages from harm. California has long been on the forefront of crafting privacy laws that complement free speech protections and better protect people in this state and far beyond,” said Jake Snow, senior staff attorney with the Technology & Civil Liberties Program at the ACLU of Northern California. “The stakes are high to protect privacy and free speech in the technology age, and we are heartened to see the court rightly recognize that stronger privacy laws have a clear path to satisfy the First Amendment.”

Legislatures have responded to many new mediums — from movies to video games to websites — with unduly burdensome restrictions on protected speech in the name of protecting children. Courts have consistently struck such laws down, stating that, even where minors are concerned, the government cannot engage in content-based censorship to protect children. Today, the Ninth Circuit agreed.