Washington, D.C. – On March 6, 2025, Tech Justice Law Project (TJLP), Electronic Privacy Information Center (EPIC), and 18 law and technology scholars and practitioners filed an amicus brief supporting the California Attorney General in defending the “Protecting Our Kids from Social Media Addiction” Act. The Act was enacted in September 2024 and challenged by tech industry group NetChoice in November 2024. In NetChoice v. Bonta, NetChoice argues that the law, which regulates addictive design features on social media platforms among other things, violates the First Amendment.
On New Years Eve 2024, the trial judge rejected NetChoice’s First Amendment argument concerning social media feeds specifically, highlighting the role of algorithms which automatically push individualized content to feeds to increase user engagement. One month later, NetChoice appealed that decision, which is now before the U.S. Court of Appeals for the Ninth Circuit. (For more background on the case and similar legal challenges by NetChoice, visit TJLP’s January 2025 Tech Litigation Roundup.)
TJLP, EPIC, and the 18 experts filed this brief to help the Ninth Circuit panel better understand how the Act combats addictive social media feeds that use algorithms to maximize the time users spend on social media–and the data companies can collect about them as a result–without violating the First Amendment. The brief distinguishes these automated processes from the editorial judgment entities like newspapers exercise when choosing what to publish, which is protected under the First Amendment. The brief argues that using engagement-maximizing algorithms to organize online content “is unlike any exercise of editorial discretion recognized in precedent.” It is distinct in part because it “lacks any semblance of human knowledge, control, and intent to imbue any message or idea in the compilation.” These automated decisions are unlike editorial discretion traditionally protected under the First Amendment because “the machines don’t know—and don’t care—what messages they are selecting and amplifying.” The Supreme Court recently signaled that the use of algorithms to automatically curate content online may not be protected by the First Amendment because they remove human judgement from the process.
“The widespread use of engagement-maximizing algorithms poses a challenge to autonomy and data privacy, especially for young people whose cognitive and behavioral development can be harmed by prolonged social media exposure,” said TJLP Policy Counsel Melodi Dinçer. “This Act allows social media platforms to better personalize feeds based on users’ preferences, showing them relevant content based on what they actually want to see–not on opaque, algorithmic approximations of their interests built off constant data surveillance.”
TJLP regularly advocates for and supports laws that regulate platform design choices harming users, especially young people. TJLP also participates in lawsuits defending such laws, informing judges about these design-based harms and how centuries-old rights like the First Amendment do not pose a barrier to modern legislative solutions.