First Amendment cases are games of chess. They are strategic, layered and full of calculated moves.
The rules are well-established, and the various legal paths are well-trodden, but every new case presents a fresh opportunity for creative positioning. If the players fail to think several moves ahead, they are unlikely to succeed.
On 13 March, the U.S. District Court for the Northern District of California ruled against the state in yet another blow to the California Age-Appropriate Design Code Act, which is now entirely enjoined from going into effect.
"For the third time in California," as plaintiff NetChoice crowed in its press release, the ruling determined that the AADCA is unlikely to survive free speech scrutiny.
This is not a one-off match, but an ongoing tournament.
To catch up quickly: The same district court judge previously blocked the AADCA after NetChoice brought an early facial challenge to the law to prevent it from going into effect. On appeal, the Court of Appeals for the Ninth Circuit only blocked part of the law — the data protection impact assessment requirement and related provisions — and instructed the district court to adjust how it approached the First Amendment questions in the case and re-consider the remainder of the law.
As the parties reset the board for another match, California agreed to suspend enforcement of the law until 5 April.
In due course, Judge Beth Labson Freeman found the case back on her docket. Her new decision demonstrates a high level of First Amendment expertise, though she seems mildly annoyed that it falls to her to fix policymakers’ headlong rush to protect children via content-restrictive rules.
Describing the challenged law's structure, she writes, "Taking these provisions directly from a law enacted in the United Kingdom, the California Legislature left it to the courts to pass the (California AADCA) through the filter of our First Amendment."
Starting the match with a flourish, NetChoice relied on some distinctive opening moves with which it has found recent luck in similar cases.
The industry association focused its strategy on convincing the court that the very scope of the AADCA's application was a content-based regulation of speech. If successful, this gambit would render analysis of the individual provisions of the law moot. If the definition of what is covered by the law is itself a prohibited regulation of speech, the entirety of the law fails.
Freeman was convinced. After all, the AADCA "does not regulate all businesses that provide services to children, only those that provide online content to children." Examining the statutory factors for whether an online service is "likely to be accessed by children" and thus subject to the AADCA requirements, she concluded, "Application of these criteria … unavoidably requires an evaluation of content."
Requiring an evaluation of content to determine application means the law creates a content-based restriction, which means strict scrutiny applies and the law fails or succeeds as a whole — not on a provision-by-provision basis.
In a risky and ultimately unlucky gambit, California focused its arguments on its belief that strict scrutiny should not apply. Once the judge determined that it did, she thus had no arguments from the state to show the required heightened standard that the law be narrowly tailored to meet a compelling legal interest.
As before, the court found that there was certainly a compelling interest behind the statute, protecting minors, but was not convinced the law was narrowly tailored to advance this interest, or even if it was, that there were not other less speech-restrictive ways to protect youth online.
Unlike chess, the nuanced rules of First Amendment analysis shift from year to year.
Because of the recent Supreme Court case, Moody v. NetChoice, judges must apply an additional layer of analysis when confronted with facial challenges to speech-restrictive laws — as opposed to challenges based on how those laws are applied in practice. Courts are now asked to consider "the full range of activities" regulated and then decide "whether the unconstitutional applications of the Act substantially outweigh the constitutional ones."
However, because the court was convinced that the scope of the law itself was content restrictive, it followed that there was no constitutionally permissible application, and so NetChoice easily defeated the new Moody test.
Even after a clean victory is assured, gameplay sometimes has a tendency to drag on. Just in case the all-at-once reasoning was not the proper path — and because the Ninth Circuit was not convinced about the problems with all of the individual provisions — Freeman went on to consider challenges to each individual provisions of the AADCA and explores at great length the parties' arguments about the proper way to challenge them and whether they impermissibly restrict speech.
During this lengthy portion, both sides captured plenty of pieces from the board, but because of the structure of the court's analysis, this makes no difference to the outcome.
In a world where provision-by-provision analysis is required, some parts of the AADCA did not fail under NetChoice’s facial challenge. This includes the sections restricting dark patterns and the use of minor’s personal information.
In contrast, the age estimation rules and the requirement for companies to enforce their own community standards would fail strict scrutiny under a facial analysis.
Freeman goes on to review other NetChoice challenges to the AADCA. The challenge to the law's vagueness is particularly interesting because it results in NetChoice's capture of even more pieces from the board. In fact, both provisions that survived the first amendment challenge above — dark patterns and restrictions on the use of person information based on material detriment and best interests of minor users — fail for vagueness, according to the court.
After this, the endgame was swift and decisive. Freeman disposes of the rest of the parties' arguments quickly and finishes with an analysis of whether a preliminary injunction is still warranted in the case.
In the end, California found its king surrounded.
Though the court determined the earlier enjoined DPIA provisions are "functionally severable" from the rest of the law, they are not "volitionally severable" because legislative history showed how core they were to the passage of the law. Beyond this, the piled-on threats from First Amendment and vagueness challenges left the state with nowhere to turn. The law is again fully enjoined.
This checkmate for the AADCA in California adds fuel to the ongoing scrutiny of similar laws across the country. However, they differ in many important respects from their early California ancestor, so only future battles will determine whether they have been fine-tuned to survive constitutional challenge.
Please send feedback, updates and captured knights to cobun@iapp.org.
Cobun Zweifel-Keegan, CIPP/US, CIPM, is the managing director, Washington, D.C., for the IAPP.
