NetChoice v. Bonta (California, 2022)

Key Takeaways:

CA's AB 2273 violates the First Amendment by giving the government unconstitutional control over online speech.
The United States District Court for the Northern District of California granted NetChoice's request for a preliminary injunction to stop the law from going into effect while our case proceeds.
Critically, as U.S. District Court Judge Beth Labson Freeman explained, AB 2273 is “not only unlikely to materially alleviate the harm of insufficient data and privacy protections for children, but actually likely to exacerbate the problem by inducing covered businesses to require consumers, including children, to divulge additional personal information.”

What's At Stake

Californians' First Amendment rights are under threat from the state government trying to tell websites what content legal speech they're allowed to host.
AB 2273 violates the Fourth Amendment by forcing sites to reveal private internal communications.
It regulates behavior outside of California's boundaries, thus violating the Commerce Clause of the U.S. Constitution.
It ignores existing federal law on protecting kids online, thus violating the Supremacy Clause of the U.S. Constitution.
It takes away parental/guardian rights and puts those into the hands of the state.

Case Brief

Case Status: In Progress

Latest Update: August 16, 2024

Attorneys:
Ambika Kumar Adam S. Sieff Robert Corn-Revere David M. Gossett Meenakshi Krishnan

Firms:
Davis Wright Tremaine LLP

Timeline

District Court
12/14/22 NetChoice files complaint against AB 2273
District Court
2/17/23 NetChoice files a request for preliminary injunction
District Court
7/27/23 Preliminary Injunction Hearing in U.S. District Court
District Court
9/18/2023 NetChoice wins preliminary injunction request in U.S. District Court
U.S. Court of Appeals for the Ninth Circuit
7/17/24 California Appeal Hearing in the Ninth Circuit Court of Appeals
U.S. Court of Appeals for the Ninth Circuit
8/16/24 Ninth Circuit Rules for NetChoice in California's Appeal

In 2022, California enacted AB 2273, or the Age-Appropriate Design Code Act (AADC), a sweeping restriction that requires websites to try to determine their users’ ages and to restrict access to constitutionally protected speech.

Beyond its First Amendment violations, AB 2273 is unconstitutional under the Dormant Commerce Clause because it regulates behavior and activities that take place outside of California. The law also imposes requirements on websites for the use, tracking, and storage of information about their users who are under the age of 18. These requirements conflict with COPPA, a federal law that governs how websites handle minors’ data. Therefore, AB 2273 also violates the Constitution’s Supremacy Clause.

Proponents of AB 2273 claim that it was designed to protect minors and their data, but it purports to do so by replacing parental oversight with government control. Parents and guardians are best suited to guide the online experience for their children.

Read our full complaint here.

Chris Marchese

Link to bio

Paul Taske

Link to Bio

Court Filings

NetChoice’s Complaint

The Northern District of California issued its decision on September 18, 2023, granting NetChoice’s request for a preliminary injunction.

NetChoice’s Motion for Preliminary Injunction

NetChoice’s Supplemental Brief

District Court’s Ruling on September 18, 2023, granting the preliminary injunction.

Filings in Support of our Motion for Preliminary Injunction:

Filings in Opposition of our Motion for Preliminary Injunction:

On August 16, 2024, the U.S. Court of Appeals for the Ninth Circuit ruled in NetChoice’s favor, noting that the AADC’s Data Protection Impact Assessment (DPIA) requirement likely violates the First Amendment by compelling speech and commandeering private companies to act as roving censors.

Press statement on the Ninth Circuit’s ruling

On October 23, 2023, the State of California filed notice of its intent to appeal the District Court’s decision granting a preliminary injunction.

California filed its opening brief on December 13, 2023.

NetChoice filed its response brief on February 7, 2024.

Amicus Briefs

Briefs in Support of NetChoice