9th Circuit Judge Compares Tech to Tobacco at Argument on Calif. Social Media Law

“You sound like the tobacco companies,” said Nelson to Scott Keller, partner at Lehotsky Keller, representing NetChoice. Social media fights “might be actually worse than a carcinogen … Are you saying that the state does not have a compelling interest in protecting children from addictive behavior?”

Keller said NetChoice’s argument does attack government interest, because “what the government essentially is trying to do is prevent harm from protected speech.”

Nelson also took issue with industry's personalized feed argument, one of three claims NetChoice brings as issue with SB-976. “Doesn't there have to be evidence of how these personalized feeds work in order to actually handle the ‘as applied’ challenge?” he asked Keller. “I think it’s true that all of your members have different algorithms, different ways in which they do the personalized feeds. I don't understand how the Constitution couldn't or wouldn't apply differently based on those personalized feed algorithms.”

He also took issue with NetChoice’s facial challenge, which he said was hurt by the NetChoice v. Moody case. In that case, Nelson said, “you have several justices who've written and said the problem with the facial challenge is you have to show that it's unconstitutional in all circumstances, and I don't know how you even do that.”

Keller said that Moody only required they “show that the unconstitutional applications substantially outweigh any constitutional applications,” and that “all roads lead to First Amendment violations.”

Judge William Fletcher asked why the 9th Circuit precedent, such as the Project Veritas v. Schmidt decision, did not mean that intermediate scrutiny instead of strict scrutiny should apply in this case. “You’ve got a pretty slender read upon which you're relying here as to why strict scrutiny is triggered,” he said.

He also asked if “the analysis [is] at all affected by the fact that we're talking about ... minors, rather than adults." He said “we've been talking about this without mentioning the fact that we're talking about kids.”

Keller said that was irrelevant but Nelson disagreed. “Clearly, children have different First Amendment rights, even under our current law, than adults,” he said. “There can be greater regulation in the school context for minor children … You have to recognize that minors have different first amendment rights.”

However, the judges also poked holes in California's argument. “I don't understand how this [law] isn't content-based, based on current Supreme Court precedent” in Cincinnati v. Discovery Network, said Nelson.

“If California had come in and said ‘all feeds, regardless of the nature, are prohibited,’ I think California would be on much more solid footing that this should be subject to intermediate scrutiny,” he said. “It's the carveouts that create a problem here.”

But Chris Kissel, deputy attorney general of California, said “the court should see that as an effort to narrowly tailor this statute at the features that the legislature determined are causing this harm.”

He also said that lifting the injunction would better help determine whether the law is constitutional. “There hasn't been an opportunity for full discovery,” said Kissel. “We don't know how these feeds actually work, which is crucial to applying to First Amendment standards and understanding what this statute would do in application.”

Judge Michael Hawkins said that NetChoice makes the point that there are less restrictive measures California could have taken, and asked Kissel if that had been fleshed out.

While Kissel said it had not been fully fleshed out, the California lawyer argued that many of the alternatives NetChoice has outlined would restrict access to the internet or social media altogether.

Paul Taske, NetChoice associate director of litigation, said in a statement before the argument that he believed the court would rule in the association's favor. “NetChoice remains confident the court will halt SB 976 in its entirety while our case proceeds,” he said. “This law poses significant threats to Californians’ constitutional freedoms and online privacy."

In early March, Common Sense Media, a bipartisan coalition of state attorneys general and two teachers' associations submitted amicus briefs in support of Bonta in case 25-146 (see 2503070040).

NetChoice sued Bonta last November over SB-976, alleging that it undermines free speech and privacy principles, leaving residents at risk of data breaches and identity theft, among other concerns (see 2501060009). The 9th Circuit enjoined the AG from enforcing the legislation pending appeal on Jan. 28 (see 2501280074).