Amicus Briefs Whack Calif. Age-Appropriate Design Code on Privacy, First Amendment Rights
A bevy of entities, including advocacy organizations and media groups like the New York Times, filed amicus briefs earlier this week that blasted California’s Age-Appropriate Design Code (AADC) Act for infringing on privacy and First Amendment rights, with some saying the statute reigns in nearly every form of online content including news sites.
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Enacted in 2022, the AADC (AB-2273) is intended to protect California children younger than 18 against online harms by requiring tech companies to adopt a design-by-default approach when developing or updating products and services that children will likely access. The law was scheduled to become effective in 2024, but has been in litigation for nearly two years. This latest tranche of amicus briefs was filed in the 9th U.S. Circuit Court of Appeals in case 25-2366.
A joint brief by the Center for Democracy and Technology (CDT) and the Electronic Frontier Foundation (EFF), argued, “The AADC’s age-verification provision unlawfully burdens adults’ and children’s ability to speak and receive information online.” It added that its application to speech that is legal for adults and minors sets it apart from the standard set by the U.S. Supreme Court in Free Speech Coalition v. Paxton (see 2506270041).
“The remaining AADC provisions, which limit how businesses process children’s data, are inseverable from the unconstitutional age-verification scheme because they cannot function without it,” they added. “By affirming the invalidity of the entire AADC in this way, the Court can fully vindicate all internet users’ free speech and data privacy rights.”
A joint brief Monday from the Reporters Committee for Freedom of the Press, Advance Publications, Hearst Corporation, the New York Times Co., Reuters and the Student Press Law Center said the Act “reaches far beyond the regulation of data privacy.”
The groups argue AB-2273 is “a content-based restriction on speech, including that of news websites,” and “people under the age of 18 have a First Amendment right to access the news, and the AADC burdens that right by requiring age estimation.” The brief adds that age estimation is not only ineffective, but itself is a violation of the First Amendment.
The Computer & Communications Industry Association also focused on First Amendment implications in a brief. “Good intentions do not excise bad lawmaking,” CCIA said. “In the name of children’s privacy or protection, AB 2273 governs and restricts virtually every form of online content,” including search engines, online publications, music, games “and countless other forms of speech.”
A brief from Chamber of Progress and Woodhill Freedom Foundation focused on the fact that Section 230 of the Communications Decency Act preempted the statute.
NetChoice wasted little time before it challenged AADC in case 22-cv-08861 in December 2022, just months after it was enacted. In February 2023, the tech trade group filed for a preliminary injunction, which Judge Beth Labson Freeman of the U.S. District Court for Northern California granted in September of that year.
California Attorney General Rob Bonta (D) then appealed the ruling to the 9th Circuit, but the appeals court ruled in favor of NetChoice in August 2024 (see 2408160015). Remanded to the district court, NetChoice filed an amended complaint and motion for preliminary injunction, which was again granted in March 2025 (see 2503130063). Now an appeal is again pending at the 9th Circuit (see 2504140058).
Davis Wright lawyer David Gossett, who helped author NetChoice’s Aug. 11 reply brief, said “it's a bit of déjà vu” in a LinkedIn post, as “the district court granted our injunction in 2023,” which the state then appealed. “In 2024 the Ninth Circuit affirmed the injunction against the core of the Act but remanded for the lower court to revisit the rest of the injunction in light of the Supreme Court's decision in Moody v. NetChoice,” he said.
“I'm very proud of this brief -- the law may be well-intentioned, but it operates to censor massive amounts of the internet in ways that plainly violate the First Amendment,” Gossett added.