AADC Violates Commerce Clause, Says NetChoice in Bid for Injunction

California’s Age-Appropriate Design Code (AADC) violates the First Amendment, “impermissibly regulates across state lines” and “is preempted by two federal statutes,” said NetChoice’s Friday reply (docket 5:22-cv-08861) in support of its motion for preliminary injunction in U.S. District Court for Northern California in San Jose.

California Attorney General Rob Bonta's (D) assertion that the AADC regulates data management -- “nonexpressive conduct” -- not speech, is “nonsense,” said NetChoice. AADC’s text “expressly requires services to ‘mitigate or eliminate’ risks that a child ‘could’ encounter ‘potentially harmful … content’ online,” it said. Content was the “through-line in the legislative process” in comments from Bonta and Gov. Gavin Newsom (D), it said. The state’s expert, developmental behavioral pediatrician Jenny Radesky, mentioned content in her declaration 71 times, it said.

The state “cannot evade the Constitution” by pretending the act regulates only business practices for the collection and use of children’s personal information, “when the law’s text, purpose, and effect are to regulate and shape online content,” said NetChoice. That the act’s purpose, to “create a safer online space for children,” does so under the guise of data management practices, doesn't matter, because those practices -- including disabling features that offer detrimental material -- regulate the distribution of speech, said the reply.

The state claims AADC isn't a prior constraint because it doesn't “authorize suppression of speech in advance of its expression,” the reply said. AADC is designed to lead to self-censorship, putting it in the category of prior restraints held valid in Bantam Books v. Sullivan, which didn’t expressly authorize suppression before speech could be published, it said. The U.S. Supreme Court “look[ed] through forms to the substance to see them for what they were -- cloaked efforts to silence speech before it could occur.”

AADC is “overbroad,” said the reply, because it “reaches every kind of online content,” including images of war on a newspaper website, political commentary on an independent blog, plus movie and book reviews. The state neither refutes nor denies the act will “decimate" the availability of online content for everyone, “torch[ing] a large segment of the internet,” the reply said.

The act is “void for vagueness,” NetChoice said, because it rests on “vague, subjective terms that provide little notice, much less fair notice, of what it prohibits.” California claims NetChoice members must already comply with similar requirements in the U.K. Children’s Code, but even if all NetChoice members were subject to that code -- and they aren't -- “the laws are not interchangeable,” said the reply. The code includes other U.K. guidance and standards, and unlike the code, AADC “must be interpreted in light of the U.S. Constitution.”

AADC violates the commerce clause because it “unduly burdens interstate commerce,” said NetChoice, citing the “assumption that online services can exclude California users through geofencing.” Geofencing is complex, imperfect and can be circumvented; also, the law is based on a user’s residency, not location, it said. And “insulating whole populations from parts of the internet by its very nature impedes the flow of commerce online.”

AADC is invalid because it's preempted by the Children's Online Privacy Protection Act (COPPA), said NetChoice. Though the state claims AADC supplements COPPA’s minimum notice and consent framework, it “conflicts with COPPA,” said the reply. COPPA applies to services “directed to children,” while AADC says “children should be afforded protections not only by online products and services specifically directed at them but by all online products and services they are likely to access.” COPPA “empowers parents to decide what their children can access online; AB 2273 strips parents of that power,” NetChoice said.