Preview
LAUREN GALLO WHITE, SBN 309075
Electronically FILED by
WILSON SONSINI GOODRICH & ROSATI Superior Court of California,
Professional Corporation County of Los Angeles
One Market Plaza, Spear Tower, Suite 3300 9/21/2023 10:59
San Francisco, CA 94105-1126 David W. Slayton,
‘Telephone: (415) 947-2000 Executive Officer/Clerk of Court,
By J. Lara, Deputy Clerk
Facsimile: (866) 974-7329
Email: lwhite@wsgr.com.
Attorneys for Defendants YouTube, LLC
and Google LLC
[Additional Counsel on Signature Page]
10
11 SUPERIOR COURT OF THE STATE OF CALIFORNIA
12 FOR THE COUNTY OF LOS ANGELES
13
14 COORDINATION PROCEEDING SPECIAL JUDICIAL COUNCIL COORDINATION
TITLE [RULE 3.400] PROCEEDING NO. 5255
15
SOCIAL MEDIA CASES For Filing Purposes: 22STCV21355
16
THIS DOCUMENT RELATES TO:
17 J udge: Hon. Carolyn B. Kuhl
Si
(Christina Arlington Smith, et al. v. TikTok
18 Inc., et al., Case No. 22STCV 21355) DEFENDANTS’ NOTICE OF
19 SUPPLEMENTAL AUTHORITY
(MC. ex rel. Crambletv. Meta Platforms, Inc., et
20 al., Case No. 22STCV40543)
21 (.P., etal. v. Meta Platforms, Inc., et al., Case No.
22STCV 26778)
22
(.S, etal. v. Meta Platforms, Inc., et al., Case No.
23
CV 2022-1472)
24.
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DEFENDANTS’ NOTICE OF SUPPLEMENTAL AUTHORITY
Defendants hereby notify the Court of NetChoice, LLC v. Bonta, No. 5:22-cv-08861-BLF (N.D.
Cal. Sept. 18, 2023), ECF No. 74 (“PI Order”) as supplemental authority that further supports their
Demumer to Master Complaint and Plaintiffs’ Short-Form Complaints (“Dem.”) and their Reply in
Support of Demurrer (“Reply”). A copy of the Bonta opinion is attached hereto as Exhibit A. This
authority supplements Defendants’ demurrer argument that the First Amendment bars Plaintiffs’ claims.
See Dem. 51-61. Bonta enjoined enforcement of Califomia’s recent Age-Appropriate Design Code Act
(“CAADCA” or “the Act”), which was enacted “for the stated purpose of affording protections to children.
when they access the intemet.” PI Order
at 1; see Sept. 14, 2023 Hearing Transcript at 29:1-7 (attached
hereto as Exhibit B). The Act limited the collection
and use of data from minors, required
age estimation
10 by services, and prohibited the use of certain design elements that are “materially detrimental to the child’s
11 physical health, mental health, or well-being.” CAADCA § 31(b)(7).! The court enjoined enforcement
12 of the Act on the grounds that NetChoice was likely to succeed on the merits of its argument
that the Act
13 violates the First Amendment because it regulates protected expression. PI Order at 6, 10. Defendants
14 specifically direct the Court’ s attention to the following portions of the Bonta opinion:
15 . The court found that the Act’s requirement that covered businesses “create
a [] report identifying, for
16 each offered
online service, product, or feature likely to be accessed by children, any risk of material
17 detrimentto children arising from the provider's data management practices” (CAADCA § 30(a)(1))
18 “regulate[s] the distribution of speech and therefore triggers] First Amendment scrutiny.” PI Order
19 at 13. The court rejected Plaintiffs’ argument that the “report requirement
merely ‘requires businesses
20 to consider how the product’ s use [of] design features, like nudging to keep a child engaged to extend
21 the time the child is using the product’ might
harm children, and that the consideration
of such features
22 “has nothingto do with speech.’” Id. at 13 (emphasis added); see Dem. 54-57; Reply 25.
23 The court held that the Act’s requirements regarding “[e]stimat{ing] the age of child users” and
24. providing them with a high default privacy setting (or forgoing age estimation and providing the high
25
26
1 This Notice follows the Bonta coutt’s citing conventions: “The CAADCA is codified at Califomia
27 Civil Code §§ 1798.99.28- 1798.99.40. When citing to the Act, the Court will cite to the statute’s
abbreviated title and last two digits. For example, the Court will cite to Cal. Civil Code § 1798.99.31 as
28 ‘CAADCA § 31.’” PI Orderat 1 n.1.
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DEFENDANTS’ NOTICE OF SUPPLEMENTAL AUTHORITY
default settingto all users) (CAADCA § 31(a)(5)) “would likely prevent both children and adults from
accessing certain content” and “thus appear{s] likely to impede the ‘availability and use’ of
information and accordingly to regulate speech.” PI Orderat 15 (quoting Sorrell v. IMS Health Inc.,
564 U.S. 552, 570-71 (2011)). The court rejected the State’s argument that these requirements
“implicate{] neither protected speech nor expressive conduct” because, the State argued, they “say
nothing about content and do not require businesses to block any content for users of any age.” PI
Orderat 15 (intemal marks omitted); see Dem. 59-61; Reply 29.
The court also addressed the CAADCA’s provisions prohibiting “sharing{] or retention of children’s
personal information, including precise geolocation information, for profiling or other purposes.” PI
10 Orderat 11 (citing CAADCA § 31(b)). The Court
held that “a law that—like
the CAADCA—restricts
11 the ‘availability and use’ of information by some speakers but not others, and for some purposes but
12 not others, is a regulationof protected expression” that triggers First Amendment scrutiny. Id. at 11-
13 12 (citing Sorrell, 564 U.S. at 570-71); see Dem. 53-57; Reply 23-24.
14 The court held that the challenged provisions of the CAADCA likely failed to satisfy the intermediate
15 scrutiny standard for commercial speech.* For example, the Act’s “age estimation provision appears
16 not only unlikely to materially alleviate the harm of insufficient data and privacy protections for
17 children, but actually likely to exacerbate the problem by inducing covered businesses to require
18 consumers, including children, to divulge additional personal information.” Id. at 22. The Act’s
19 altemative to age-estimation—which would require businesses who do not estimate age to “apply the
20 privacy and data protections afforded to children to all consumers” (CAADCA § 31(a)(5))—would.
21 likely have a “potentially vast chilling effect” on the type of content that online services could display
22 to both children
and adults. Id. at 23-24. The Court rejected the State’s argument that the age
23 estimation provision “does not prevent any specific content from being displayed to a consumer, even
24.
25
26
? Because it concluded that the statute would fail even intermediate scrutiny, the court in Bonta did not
27 definitively resolve whether the statute was subjectto strict scrutiny eitheras a regulation of purely non-
commercial speech ornon-commenrcial speech inextricably intertwined with commercial speech. PI Order
28
at 17-18.
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DEFENDANTS’ NOTICE OF SUPPLEMENTAL AUTHORITY
if the consumer
is a minor, it only prohibits a business from profiling a minor and using that
information to provide targeted content.” Id. at 23; see Dem. 59-61; Reply 29.
The Act's prohibition on “[using] the personal information of any child in a way that the business
knows, or has reasonto know, is materially detrimental to the physical health, mental health, or well-
being of a child” (CAADCA § 31(b)(1)) might result in covered businesses “bar{ring] all children
from accessing
their online services rather than undergo the burden of determining exactly what can.
be done with the personal information of” children, which would “‘burden substantially more speech
than necessary.’” PI Orderat 29 (citations omitted); see Dem. 58, 59-61; Reply 29.
The court also enjoined the Act’s prohibition on the “[ulse [of] dark pattems . . . to take any action
10 that the business knows, or has reason
to know, is materially detrimental to the child’ s physical health,
11 mental health, orwell-being” (CAADCA § 31(b)(7)). PI Orderat 32; seeid. (“Dark pattems are design
12 features that ‘nudge’ individuals into making certain decisions, such as spending more time on an
13 application.”). In considering
the state’ s argument “that
dark pattems cause harm to children’s well-
14 being, such as when a child recovering from an eating disorder ‘must both contend with dark pattems
15 that make it difficult to unsubscribe from such content and attempt to reconfigure their data settings
16 in the hope of preventing unsolicited content of the same nature,” the court noted “the lack of
17 objective standard regarding what content is materially detrimental to a child’s well-being,” and
18 concluded “that in the face of such uncertainties about the statute’ s requirements, the statute
may cause
19 covered businesses to deny children access to their platforms or content.” PI Orderat 34 (citation
20 omitted); Dem. 55-57; Reply 25-26.
21 Finally, the Act’s terms relating to “[plrofil[ing] a child” unless certain qualifications are met
22 (CAADCA § 31(b)(2)) were likely not appropriately tailored. PI Order at 29. The court explained
23 that while some profiling may cause harm to children’s well-being, “profiling and subsequent targeted
24. content can be beneficial to minors, particularly those in vulnerable populations.” Id. And the Act’s
25 limited allowance of profiling “in the best interest of children” would “likely prevent
the dissemination.
26 of a broad array of content beyond that which is targeted by the statute.” Id. at 30; see Dem. 55, 59-
27 61; Reply 28-29.
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DEFENDANTS’ NOTICE OF SUPPLEMENTAL AUTHORITY
DATED: September
21, 2023 ‘WILSON SONSINI GOODRICH & ROSATI PC
By: /s/ Lauren Gallo White
Lauren Gallo White
LAUREN GALLO WHITE, SBN 309075
lwhite@wsgr.com
ANDREW KRAMER, SBN 321574
akramer@wsgr.com
CARMEN SOBCZAK, SBN 342569
csobczak@wsgr.com.
WILSON SONSINI GOODRICH & ROSATI
PC
One Market Plaza, Spear Tower, Suite 3300
10
San Francisco, CA 94105
11 Tel.: 415-947-2000
12 BRIAN M. WILLEN, pro hac vice
bwill .com
13 WILSON SONSINI GOODRICH & ROSATI
14 PC
1301 Avenue of the Americas, 40th Floor
15 New York, New York 10019
Tel.: 212-999-5800
16
CHRISTOPHER CHIOU, SBN 233587
17 cchiou@wsgr.com.
18 SAMANTHA MACHOCK, SBN 298852
.com
19 MATTHEW K. DONOHUE, SBN 302144
mdonohue@wsgr.com
20 WILSON SONSINI GOODRICH & ROSATI
PC
21
633 W Sth Street
22 Los Angeles, CA 90071
Tel.: 323-210-2900
23
Attorneys for Defendants YouTube, LLC and Google
24. LLC
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DEFENDANTS’ NOTICE OF SUPPLEMENTAL AUTHORITY
1]| DATED: September
21, 2023 COVINGTON& BURLING LLP
2
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By: /s/ AshleyM. Simonsen
4 Ashley M. Simonsen
5 ASHLEY M. SIMONSEN, SBN 275203
asimonsen@cov.com
COVINGTON & BURLING LLP
1999 Avenue of the Stars
Los Angeles, CA 90067
Tel.: 424-332-4800
EMILY JOHNSON HENN, SBN 269482
ehenn@cov.com.
10
COVINGTON & BURLING LLP
11 3000 El Camino
Real
5 Palo Alto Square, 10th Floor
12 Palo Alto, CA 94306
Tel.: 650-632-4700
13
14 BETH S. BRINKMANN, SBN 129937
bbrinkmann@cov.com.
15 MARK W. MOSIER, pro hac vice forthcoming
mmosier@cov.com
16 PHYLLIS A. JONES, pro hac vice
Pajones@cov.com
17 PAUL W. SCHMIDT, pro hac vice
18 pschmidt@cov.com
MICHAEL X. IMBROSCIO, pro hac vice
19 forthcoming
mimbroscio@cov.com
20 COVINGTON & BURLING LLP
One City Center
21
850 Tenth Street,NW
22 Washington, DC 20001
Tel.: 202-662-6000
23
Attorneys for Defendants Meta Platforms, Inc.
24. fk/a Facebook, Inc.; Facebook Holdings, LLC;
Facebook Operations, LLC; Facebook Payments,
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Inc.; Facebook Technologies, LLC;
26 Instagram, LLC; and Siculus, Inc.
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DEFENDANTS’ NOTICE OF SUPPLEMENTAL AUTHORITY
DATED: September
21, 2023 MUNGER, TOLLES & OLSON LLP
By: /s/ Jonathan H. Blavin
Jonathan H. Blavin
JONATHAN H. BLAVIN, SBN 230269
jonathan. blavin@mto.com
MUNGER, TOLLES & OLSON LLP
560 Mission Street, 27th Floor
San Francisco, CA 94105
Tel.: 415-512-4000
10 ROSE L. EHLER, SBN 29652
Rose.Ehler@mto.com
11 VICTORIA A. DEGTYAREVA, SBN 284199
Victoria. mito.com.
12 ARIEL T. TESHUVA, SBN 324238
Ariel. Teshuva@mito.com
13 MUNGER, TOLLES & OLSON LLP
14 350 South Grand Avenue, 50th Floor
Los Angeles, CA 90071
15 Tdl.: 213-683-9100
16 LAUREN A. BELL, pro hac vice
17
Lauren.Bell@mito.com
18 MUNGER, TOLLES & OLSON LLP
601 Massachusetts
Ave., NW St.
19 Suite 500 E
Washington, D.C. 20001
20 Tel.: 202-220-1100
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Attorneys for Defendant Snap Inc.
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DEFENDANTS’ NOTICE OF SUPPLEMENTAL AUTHORITY
DATED: September
21, 2023 KING & SPALDING LLP
By: /s/ Matthew]. Blaschke
MatthewJ. Blaschke
MATTHEWJ. BLASCHKE, SBN 281938
mblaschke@kslaw.com.
DAVID P. MATTERN, pro hac vice
dmattem@kslaw.com
KING & SPALDING LLP
50 Califomia Street, Suite 3300
San Francisco, CA 94111
Tdl.: 415-318-1200
10
ALBERT Q. GIANG, SBN 224332
11 i kslaw.com
KING & SPALDING LLP
12 633 West Fifth Street, Suite 1600
Los Angeles, CA 90071
13 Tel.: 213-443-4310
14
GEOFFREY DRAKE, pro hac vice
15 kslaw.com
KING & SPALDING LLP
16 1180 Peachtree Street, NE, Suite 1600
Atlanta, GA 30309
17 Tel.: 404-572-4600
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DATED: September
21, 2023 FAEGRE DRINKER BIDDLE & REATH LLP
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22 By: /s/ Tarifa B. Laddon
Tarifa B. Laddon
23
TARIFA B. LADDON, SBN 240419
24. tarifaladdon@f i com.
25 DAVID P. KOLLER, SBN 328633
david. koller@faegredrinker.com
26 FAEGRE DRINKER BIDDLE & REATH
LLP
27 1800 Century Park East, Suite 1500
Los Angeles, CA 90067
28 Tel.: 310-203-4000
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DEFENDANTS’ NOTICE OF SUPPLEMENTAL AUTHORITY
ANDREA R. PIERSON, pro hac vice
andrea.pierson@faegredrinker.com
FAEGRE DRINKER BIDDLE
& REATH LLP
300 N. Meridian Street, Suite 2500
Indianapolis, IN 46204
Tei: 317-237-1424
Attot mmeys for Defendants TikTok Inc. and ByteDance
Inc.
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DEFENDANTS’ NOTICE OF SUPPLEMENTAL AUTHORITY
CERTIFICATE OF SERVICE
I, Deborah Grubbs, declare:
Tam employed in Santa Clara County, State of Califomia. I am over
the age of 18 years and
not a party to the within action. My business address is Wilson Sonsini Goodrich
& Rosati, 650 Page
Mill Road, Palo Alto, Califomia 94304-1050.
On this date, I served:
1 DEFENDANTS’ NOTICE OF SUPPLEMENTAL AUTHORITY
By forwarding the document(s) by electronic transmission via Case in
accordance with the Court’s Authorized Electronic Service requiring documentsto
be served upon interested parties via the Case Anywhere System.
10
11 lam readily familiar with Wilson Sonsini Goodrich & Rosati’s practice for collection and
12 ng of documents for delivery according to instructions indicated above. In the ordinary course
13 of business, documents would be handled accordingly.
14 I declare
under penalty of perjury
under the laws of the State of Califomia
that the foregoing is
15 true and correct. Executed at Palo Alto, Califomia on September 21, 2023.
16
als Genk
17 Deborah Abels
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DEFENDANTS’ NOTICE OF SUPPLEMENTAL AUTHORITY
EXHIBIT A
Case 5:22-cv-08861-BLF Document 74 Filed 09/18/23 Page 1 of 45
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
NETCHOICE, LLC, d/b/a NetChoice Case No. 22-cv-08861-BLF
Plaintiff,
ORDER GRANTING MOTION FOR
Vv.
10 PRELIMINARY INJUNCTION
11 ROB BONTA, Attorney General of the State [Re: ECF 29]
of California, in his official capacity,
12 Defendant.
BE 13
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86 14
RY This suit challenges the enforceability of the California A ge-A ppropriate Design Code Act
Ax 15
(“the CAADCA” or “the Act’), which was recently enacted for the stated purpose of affording
16
protections to children when they access the internet. See Cal. Civ. Code § 1798.99.29.! The Act
17
applies to for-profit businesses that collect consumers’ personal information and satisfy other
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18
criteria relating to business size and revenue. See CAADCA § 30; Cal. Civ. Code § 1798.140.
19
Effective July 1, 2024, the Act imposes a number of requirements on any covered business that
20
“provides an online service, product, or feature likely to be accessed by children.” CAADCA §
21
31.
22
Plaintiff NetChoice, LLC (“NetChoice”) “is a national trade association of online
23
businesses that share the goal of promoting free speech and free enterprise on the Internet.”
24
Compl. §.5, ECF 1. NetChoice’s members include Google, Amazon, Meta, TikTok and many
25
other companies with strong online presences. NetChoice sues Defendant Rob Bonta, Attorney
26
27
! The CAADCA is codified at California Civil Code §§ 1798.99.28-1798.99.40. When citing to
28 the Act, the Court will cite to the statute’s abbreviated title and last two digits. For example, the
Court will cite to Cal. Civil Code § 1798.99.31 as “CAADCA § 31.”
Case 5:22-cv-08861-BLF Document 74 Filed 09/18/23 Page 2 of 45
General of the State of California (“the State”), for declaratory and injunctive relief related to the
CAADCA, which it asserts is both facially unconstitutional and preempted by federal statute.
NetChoice moves for preliminary injunction based on its claims that the CAADCA
violates the First Amendment and the dormant Commerce Clause of the United States
Constitution, and is preempted by both the Children’s Online Privacy Protection Act (“COPPA”),
15 U.S.C. §§ 6501-6506, and Section 230 of the Communications Decency Act, 47 U.S.C. § 230.
See Mot., ECF 29. The State opposes the motion, arguing that the CAADCA regulates conduct—
the collection and use of children’s personal information—that does not implicate the First
Amendment. See Opp’n, ECF 51. The State also contends that the CAADCA does not violate the
10 dormant Commerce Clause and is not preempted by either COPPA or Section 230. See id.
11 Mindful that the CAADCA was enacted with the unanimous support of California’s
12 Legislature and Governor, the Court has given careful consideration to the motion, the State’s
BE 13 opposition, NetChoice’s reply, the supplemental briefs filed by both parties, the briefs filed by
O#8
86 14 seven sets of amici curiae, and the oral arguments presented at the hearing on July 27, 2023. The
RY
Ax 15 Court finds that although the stated purpose of the Act—protecting children when they are
16 online—clearly is important, NetChoice has shown that it is likely to succeed on the merits of its
17 argument that the provisions of the CAADCA intended to achieve that purpose do not pass
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18 constitutional muster. Specifically, the Court finds that the CAADCA likely violates the First
19 Amendment. The motion for preliminary injunction is GRANTED on that basis.
20 I BACKGROUND
21 The internet has become indispensable to the exchange of information. Many online
22 providers allow users to view content and access services without creating an account, while
23 others require the creation of a free account to access services, and still others require users to pay
24 fees. See Cairella Decl. {§ 4-8, ECF 22; Masnick Decl. {§ 5-6, ECF 29; Roin Decl. {{ 7-9, ECF
25 25; Paolucci Decl. 2, ECF 28. Online providers generally rely on advertising to earn revenue
26 that supports the content and services they offer. See Cairella Decl. 194, 21; Roin Decl. 410.
27 Advertisements are targeted to users based on their interests, which are gleaned from data
28 collected from the users while they are online. See Egelman Decl. {1 13-14, ECF 51-1. Such data
2
Case 5:22-cv-08861-BLF Document 74 Filed 09/18/23 Page 3 of 45
also is used by online providers to tailor content to individual users. See Cairella Decl. 18; Roin
Decl. { 2-6. In addition, online providers may sell user data to third parties. See Egelman Decl.
qi.
Users can manage their online privacy by reading privacy policies before engaging with
the provider’s services. See Egelman Decl. 24. Users also may change their privacy settings to
block or delete “cookies,” which are data that websites store in consumers’ web browsers, which
are then transmitted back to websites when visited again. See id. | 29. However, privacy policies
can be difficult to understand and privacy settings are not always user friendly. See id. 1 24-30.
These privacy concerns have become increasingly relevant to children, because their
10 intemet use has grown dramatically in recent years. See Radesky Decl. 21-25, ECF 51-5.
11 During the COVID-19 pandemic, children’s access to digital technology and time online went up
12 significantly. See id. 426. Children’s time online increased approximately 52% during the
BE 13 pandemic, and heavier technology use habits have persisted. See id. Children depend on the
O#8
86 14 intemet for both educational and entertainment purposes. See id. {1 26-29. Unplugging is not a
RY
Ax 15 viable option. See id. § 29.
16 A federal child privacy law, COPPA, limits the ability of online providers to collect
17 personal information from children. See 15 U.S.C.A. §§ 6501-06. COPPA makes it “unlawful
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18 for an operator of a website or online service directed to children, or any operator that has actual
19 knowledge that it is collecting personal information from a child, to collect personal information
20 from a child in a manner that violates the regulations prescribed” under the statute. 15 U.S.C. §
21 6502(a)(1). “Child” is defined as an individual under the age of 13. 15 U.S.C. § 6501(1). The
22 applicable regulations require the operator to obtain parental consent prior to any collection, use,
23 or disclosure of personal information from children. See 16 C.F.R. § 312.3(b).
24 The California Consumer Privacy Act (“CCPA”) imposes limits on the collection of
25 personal information from users generally, requiring among other things that online providers
26 inform users of the categories of personal information to be collected and the purposes of such
27 collection. See Cal. Civ. Code § 1798.100(a)(1). The CCPA defines “personal information” to
28 include any information that “relates to, describes, is reasonably capable of being associated with,
3
Case 5:22-cv-08861-BLF Document 74 Filed 09/18/23 Page 4 of 45
or could reasonably be linked, directly or indirectly, with a particular consumer or household.”
Cal. Civ. Code § 1798.140(v).
It is against this backdrop that the CAADCA was enacted. The CAADCA goes far beyond
the scope of protections offered by COPPA and the CCPA. Whereas COPPA limits the collection
of user data by operators of websites and services “directed to children,” 15 U.S.C. § 6502(a)(1),
the CAADCA “declares that 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,” CAADCA § 29. COPPA protects children under the age of 13, see 15 U.S.C. § 6501(1),
while the CAADCA protects children under the age of 18, see CAADCA § 30(b)(1). COPPA
10 gives parents authority to make decisions about use of their children’s personal information, see
11 16 C.F.R. § 312.3(b), and the CCPA gives users authority to make decisions about their own
12 personal information, see Cal. Civ. Code § 1798.135. In contrast, the CAADCA requires online
BE 13 providers to create a Data Protection Impact Assessment (“DPIA”) report identifying, for each
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86 14 offered online service, product, or feature likely to be accessed by children, any risk of material
RY
Ax 15 detrimentto children arising from the provider’s data management practices. See CAADCA §
16 30(a)(1). Providers must create a “timed plan to mitigate or eliminate” the risks identified in the
17 DPIA “before the online service, product, or feature is accessed by children,” id. § 30(a)(2), and
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18 must provide the DPIA reports to the California Attorney General upon written request, see id. §
19 30(a)(2). The CAADCA also requires that online providers comply with a list of enumerated
20 mandates and prohibitions, discussed in detail below. See id. § 31(a)-(b)
21 Covered businesses must complete the required DPIA reports and satisfy related
22 requirements by July 1, 2024, and continue to do so on an ongoing basis. See CAADCA §§ 31,
23 33. The CAADCA authorizes the California A ttomey General to bring a civil enforcement action
24 against any business that fails to comply with the Act’s requirements. See id. § 35. Violators are
25 subject to civil penalties of $2,500 per child for each negligent violation and $7,500 for each
26 intentional violation. See id.
27 NetChoice filed this suit on December 14, 2022, challenging the CAADCA as facially
28 unconstitutional and preempted by federal statute. The complaint asserts the following claims:
4
Case 5:22-cv-08861-BLF Document 74 Filed 09/18/23 Page 5 of 45
(1) violation of the First and Fourteenth Amendments to the U.S. Constitution, and Article I,
Section 2(a) of the California Constitution; (2) violation of the Fourth Amendmentto the U.S.
Constitution; (3) void for vagueness under the First Amendment and Due Process Clause of the
U.S. Constitution, and Article I, Section 7(a) of the California Constitution; (4) violation of the
dormant Commerce Clause of the U.S. Constitution; (5) preemption by COPPA; and (6)
preemption by Section 230. Compl. {| 76-122. The complaint requests declaratory and
injunctive relief prohibiting enforcement of the CAADCA.
NetChoice now seeks a preliminary injunction enjoining enforcement of the CAADCA
pending disposition of the suit.
10 II. LEGAL STANDARD
11 “Courts consider four factors in deciding whether to grant a preliminary injunction: the
12 plaintiff's likelihood of success on the merits; her likelihood of suffering irreparable harm in the
BE 13 absence of preliminary relief; whether the balance of equities tips in her favor; and whether an
O#8
86 14 injunction is in the public interest.” Garcia v. City of Los Angeles, 11 F.4th 1113, 1118 (9th Cir.
RY
Ax 15 2021) (citing Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)).
v2
16 In this circuit, “[l]ikelihood of success on the merits is the most important factor.
17 Apartment Ass'n of L.A. Cuty., Inc. v. City of Los Angeles, 10 F.4th 905, 912 (9th Cir. 2021)
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18 (quoting California v. Azar, 911 F.3d 558, 575 (9th Cir. 2018)). “It is well-established that the
19 first factor is especially important when a plaintiff alleges a constitutional violation and injury.”
20 Baird v. Bonta, - FAth ----, 2023 WL 5763345, at *3 (9th Cir. Sept. 7, 2023). “Ifa plaintiffin
21 such a case shows he is likely to prevail on the merits, that showing usually demonstrates he is
22 suffering irreparable harm no matter how brief the violation.” Id. Finally, “[wJhen, like here, the
23 nonmovant is the government, the last two Winter factors merge.” Id. at *2 (quotation marks and
24 citation omitted).
25
26 2 Where the plaintiff cannot show a likelihood of success on the merits, “‘serious questions going
to the merits’ and a hardship balance that tips sharply toward the plaintiff can support issuance of
27 an injunction, assuming the other two elements of the Winter test are also met.” All. for the Wild
Rockies v. Cottrell, 632 F.3d 1127, 1132 (9th Cir. 2011). The Court need not apply this alternative
28 formulation of the Winter test here because, as discussed below, NetChoice makes a strong
showing on likelihood of success and on the other Winter factors.
5
Case 5:22-cv-08861-BLF Document 74 Filed 09/18/23 Page 6 of 45
Til. DISCUSSION
A Likelihood of Success on the Merits
NetChoice argues that it is likely to succeed on the merits of its claims that the Act violates
free speech rights under the First Amendment (Claims 1 and 3), violates the dormant Commerce
Clause (Claim 4), and is preempted by both COPPA (Claim 5) and Section 230 (Claim 6). See
Mot. 1; Compl. 9] 76-122.
1 First Amendment (Claims 1 and 3)
Claim 1 asserts that the CAADCA violates the First Amendment because it is an unlawful
prior restraint on protected speech, is unconstitutionally overbroad, and regulates protected
10 expression but fails strict scrutiny or any lesser standard of scrutiny that may apply. See Compl.
11 {11 76-88. Claim 3 asserts that the CAADCA is void for vagueness under the First Amendment.
12 See id. 93-103. NetChoice argues that it is likely to succeed on its First Amendment claims
BE 13 because the CAADCA: (1) is an unlawful prior restraint; (2) is unconstitutionally overbroad; (3)
O#8
86 14 is void for vagueness; and (4) is subject to and fails strict scrutiny. Mot. 7-22.
RY
Ax 15 Before taking up these arguments, the Court notes that both parties appear to have accepted
16 the relaxed standard for standing in a First Amendment facial challenge. That is, although the
17 general rule of standing is that a party may not challenge a statute’s constitutionality “on the
Po
18 ground that it may conceivably be applied unconstitutionally to others,” Broadrick v. Oklahoma,
19 413 U.S. 601, 610 (1973), a party making a First Amendment claim has standing to challenge the
20 impact of a regulation on both “its own expressive activities, as well as those of others,” $.0.C.
21 Inc. v. County of Clark, 152 F.3d 1136, 1142 (9th Cir. 1998). Accordingly, the parties have
22 made—and the Court will consider—arguments about the CAADCA’s alleged impact on the
23 expressive activities of individuals and entities who are not NetChoice members.
24 Turning to NetChoice’s four First Amendment arguments on likelihood of success, the
25 Court first addresses the argument that the A ct regulates protected expression and fails the
26 applicable level of scrutiny. Because the argument is dispositive, the Court need not address
27 NetChoice’s additional First Amendment arguments based on prior restraint, overbreadth, and
28 vagueness.
Case 5:22-cv-08861-BLF Document 74 Filed 09/18/23 Page 7 of 45
a Legal Framework re Scrutiny for Regulations of Speech
“The First Amendment generally prevents government from proscribing speech, [] or even
expressive conduct, [] because of disapproval of the ideas expressed.” R.A.V. v. City of St. Paul,
505 U.S. 377, 382 (1992) (internal citations omitted). A law compelling speech is no less subject
to First Amendment scrutiny than a law prohibiting speech. Frudden v. Pilling, 742 F.3d 1199,
1203 (9th Cir. 2014) (citing W. Va. State Bd. Of Educ. v. Barnette, 319 U.S. 624, 633-34 (1943)).
The threshold question in a free speech analysis is whether the challenged law invokes the
First Amendment at all. See Int’l Franchise Ass'n v. City of Seattle, 803 F.3d 389, 408 (9th Cir.
2015). “All manner of speech—from ‘pictures, films, paintings, drawings, and engravings,’ to
10 ‘oral utterance and the printed word’—qualify for the First Amendment's protections; no less can
11 hold true when it comes to speech . . . conveyed over the Internet.” 303 Creative LLC v. Elenis,
12 600 U.S. —, 143 S. Ct. 2298, 2312 (2023) (citations omitted). That is, the First Amendment’s
BE 13 protections apply not only to written or verbal speech, but to any expressive conduct. See, e.g.,
O#8
86 14 Ward v. Rock Against Racism, 491 U.S. 781, 790 (1989) (“Music, as a form of expression and
RY
Ax 15 communication, is protected under the First Amendment.”). In determining whether a law
16 regulates protected expression, courts evaluate “whether [activity] with a ‘significant expressive
17 element’ drew the legal remedy or the ordinance has the inevitable effect of ‘singling out those
Po
18 engaged in expressive activity.’”” Jnt’l Franchise, 803 F.3d at 408 (quoting Arcara v. Cloud
19 Books, Inc., 478 U.S. 697, 706-07 (1986)). For example, a tax on paper and ink that in effect
20 “single[s] out the press for special treatment” regulates protected expression, although the
21 application of a general sales tax to newspapers does not. See Minneapolis Star & Tribune Co. v.
22 Minn. Comm’r of Revenue, 460 U.S. 575, 581-82 (1983). A regulation that restricts conduct
23 without a “significant expressive element” is not subject to any level of First Amendment scrutiny
24 See HomeAway.com, Inc. v. City of Santa Monica, 918 F.3d 676, 684 (9th Cir. 2019); see also
25 Sorrell v. IMS Health Inc., 564 U.S. 552, 567 (2011) (“[{T]he First Amendment does not prevent
26 restrictions directed at commerce or conduct from imposing incidental burdens on speech.”).
27 If a court finds that a challenged law regulates some manner of protected expression, it
28 must then “determine the scope of the [regulated] speech” in order to apply the appropriate level
7
Case 5:22-cv-08861-BLF Document 74 Filed 09/18/23 Page 8 of 45
of scrutiny. Yim v. City of Seattle, 63 F.4th 783, 791 (9th Cir. 2023). There are several levels of
scrutiny that may apply, depending on the type of expression at issue.
1 Strict Scrutiny
If the challenged regulation restricts only non-commercial speech, the level of scrutiny
depends on whether the law is content based or content neutral. “Government regulation of
speech is content based if a law applies to particular speech because of the topic discussed or the
idea or message expressed,” that is, if the regulation “draws distinctions based on the message a
speaker conveys.” Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015) (citations omitted). A law
is also content based if, even though facially neutral, it “cannot be justified without reference to
10 the content of the regulated speech, or. . . were adopted by the government because of
11 disagreement with the message the speech conveys.” Id. at 164 (internal punctuation marks and
12 citation omitted). If the court determines a law is content based, it applies strict scrutiny,
BE 13 “regardless of the government’s benign motive, content-neutral justification, or lack of ‘animus
O#8
86 14 toward the ideas contained’ in the regulated speech.” Porter v. Martinez, 68 F.4th 429, 439 (9th
RY
Ax 15 Cir. 2023) (citations omitted). Strict scrutiny “requires the Government to prove that the
16 restriction furthers a compelling interest and is narrowly tailored to achieve that interest.” Reed,
17 576 U.S. at 171; see also Berger v. City of Seattle, 569 F.3d 1029, 1050 (9th Cir. 2009) (“Under
Po
18 that standard [of strict scrutiny], the regulation is valid only if it is the least restrictive means
19 available to further a compelling government.) (citing United States v. Playboy Ent. Grp., Inc.,
20 529 U.S. 803, 813 (2000)).
21 ii. Intermediate Scrutiny
22 “By contrast, a content-neutral regulation of [non-commercial] expression must meet the
23 less exacting standard of intermediate scrutiny.” Porter, 68 F.4th at 439 (citation omitted). Under
24 this lower standard, “a regulation is constitutional ‘if it furthers an important or substantial
25 governmental interest; if the governmental interest is unrelated to the suppression of free
26 expression; and if the incidental restriction on alleged First Amendment freedoms is no greater
27 than is essential to the furtherance of that interest.’” Id. (quoting United States v. O'Brien, 394
28 U.S. 367, 377 (1968)).
Case 5:22-cv-08861-BLF Document 74 Filed 09/18/23 Page 9 of 45
iii. Commercial Speech Scrutiny
If a statute regulates only commercial speech—i.e., “‘expression related solely
Preview
LAUREN GALLO WHITE, SBN 309075 Electronically FILED by WILSON SONSINI GOODRICH & ROSATI Superior Court of California, Professional Corporation County of Los Angeles One Market Plaza, Spear Tower, Suite 3300 9/21/2023 10:59 San Francisco, CA 94105-1126 David W. Slayton, ‘Telephone: (415) 947-2000 Executive Officer/Clerk of Court, By J. Lara, Deputy Clerk Facsimile: (866) 974-7329 Email: lwhite@wsgr.com. Attorneys for Defendants YouTube, LLC and Google LLC [Additional Counsel on Signature Page] 10 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 FOR THE COUNTY OF LOS ANGELES 13 14 COORDINATION PROCEEDING SPECIAL JUDICIAL COUNCIL COORDINATION TITLE [RULE 3.400] PROCEEDING NO. 5255 15 SOCIAL MEDIA CASES For Filing Purposes: 22STCV21355 16 THIS DOCUMENT RELATES TO: 17 J udge: Hon. Carolyn B. Kuhl Si (Christina Arlington Smith, et al. v. TikTok 18 Inc., et al., Case No. 22STCV 21355) DEFENDANTS’ NOTICE OF 19 SUPPLEMENTAL AUTHORITY (MC. ex rel. Crambletv. Meta Platforms, Inc., et 20 al., Case No. 22STCV40543) 21 (.P., etal. v. Meta Platforms, Inc., et al., Case No. 22STCV 26778) 22 (.S, etal. v. Meta Platforms, Inc., et al., Case No. 23 CV 2022-1472) 24. 25 26 27 28 1 DEFENDANTS’ NOTICE OF SUPPLEMENTAL AUTHORITY Defendants hereby notify the Court of NetChoice, LLC v. Bonta, No. 5:22-cv-08861-BLF (N.D. Cal. Sept. 18, 2023), ECF No. 74 (“PI Order”) as supplemental authority that further supports their Demumer to Master Complaint and Plaintiffs’ Short-Form Complaints (“Dem.”) and their Reply in Support of Demurrer (“Reply”). A copy of the Bonta opinion is attached hereto as Exhibit A. This authority supplements Defendants’ demurrer argument that the First Amendment bars Plaintiffs’ claims. See Dem. 51-61. Bonta enjoined enforcement of Califomia’s recent Age-Appropriate Design Code Act (“CAADCA” or “the Act”), which was enacted “for the stated purpose of affording protections to children. when they access the intemet.” PI Order at 1; see Sept. 14, 2023 Hearing Transcript at 29:1-7 (attached hereto as Exhibit B). The Act limited the collection and use of data from minors, required age estimation 10 by services, and prohibited the use of certain design elements that are “materially detrimental to the child’s 11 physical health, mental health, or well-being.” CAADCA § 31(b)(7).! The court enjoined enforcement 12 of the Act on the grounds that NetChoice was likely to succeed on the merits of its argument that the Act 13 violates the First Amendment because it regulates protected expression. PI Order at 6, 10. Defendants 14 specifically direct the Court’ s attention to the following portions of the Bonta opinion: 15 . The court found that the Act’s requirement that covered businesses “create a [] report identifying, for 16 each offered online service, product, or feature likely to be accessed by children, any risk of material 17 detrimentto children arising from the provider's data management practices” (CAADCA § 30(a)(1)) 18 “regulate[s] the distribution of speech and therefore triggers] First Amendment scrutiny.” PI Order 19 at 13. The court rejected Plaintiffs’ argument that the “report requirement merely ‘requires businesses 20 to consider how the product’ s use [of] design features, like nudging to keep a child engaged to extend 21 the time the child is using the product’ might harm children, and that the consideration of such features 22 “has nothingto do with speech.’” Id. at 13 (emphasis added); see Dem. 54-57; Reply 25. 23 The court held that the Act’s requirements regarding “[e]stimat{ing] the age of child users” and 24. providing them with a high default privacy setting (or forgoing age estimation and providing the high 25 26 1 This Notice follows the Bonta coutt’s citing conventions: “The CAADCA is codified at Califomia 27 Civil Code §§ 1798.99.28- 1798.99.40. When citing to the Act, the Court will cite to the statute’s abbreviated title and last two digits. For example, the Court will cite to Cal. Civil Code § 1798.99.31 as 28 ‘CAADCA § 31.’” PI Orderat 1 n.1. 2 DEFENDANTS’ NOTICE OF SUPPLEMENTAL AUTHORITY default settingto all users) (CAADCA § 31(a)(5)) “would likely prevent both children and adults from accessing certain content” and “thus appear{s] likely to impede the ‘availability and use’ of information and accordingly to regulate speech.” PI Orderat 15 (quoting Sorrell v. IMS Health Inc., 564 U.S. 552, 570-71 (2011)). The court rejected the State’s argument that these requirements “implicate{] neither protected speech nor expressive conduct” because, the State argued, they “say nothing about content and do not require businesses to block any content for users of any age.” PI Orderat 15 (intemal marks omitted); see Dem. 59-61; Reply 29. The court also addressed the CAADCA’s provisions prohibiting “sharing{] or retention of children’s personal information, including precise geolocation information, for profiling or other purposes.” PI 10 Orderat 11 (citing CAADCA § 31(b)). The Court held that “a law that—like the CAADCA—restricts 11 the ‘availability and use’ of information by some speakers but not others, and for some purposes but 12 not others, is a regulationof protected expression” that triggers First Amendment scrutiny. Id. at 11- 13 12 (citing Sorrell, 564 U.S. at 570-71); see Dem. 53-57; Reply 23-24. 14 The court held that the challenged provisions of the CAADCA likely failed to satisfy the intermediate 15 scrutiny standard for commercial speech.* For example, the Act’s “age estimation provision appears 16 not only unlikely to materially alleviate the harm of insufficient data and privacy protections for 17 children, but actually likely to exacerbate the problem by inducing covered businesses to require 18 consumers, including children, to divulge additional personal information.” Id. at 22. The Act’s 19 altemative to age-estimation—which would require businesses who do not estimate age to “apply the 20 privacy and data protections afforded to children to all consumers” (CAADCA § 31(a)(5))—would. 21 likely have a “potentially vast chilling effect” on the type of content that online services could display 22 to both children and adults. Id. at 23-24. The Court rejected the State’s argument that the age 23 estimation provision “does not prevent any specific content from being displayed to a consumer, even 24. 25 26 ? Because it concluded that the statute would fail even intermediate scrutiny, the court in Bonta did not 27 definitively resolve whether the statute was subjectto strict scrutiny eitheras a regulation of purely non- commercial speech ornon-commenrcial speech inextricably intertwined with commercial speech. PI Order 28 at 17-18. 3 DEFENDANTS’ NOTICE OF SUPPLEMENTAL AUTHORITY if the consumer is a minor, it only prohibits a business from profiling a minor and using that information to provide targeted content.” Id. at 23; see Dem. 59-61; Reply 29. The Act's prohibition on “[using] the personal information of any child in a way that the business knows, or has reasonto know, is materially detrimental to the physical health, mental health, or well- being of a child” (CAADCA § 31(b)(1)) might result in covered businesses “bar{ring] all children from accessing their online services rather than undergo the burden of determining exactly what can. be done with the personal information of” children, which would “‘burden substantially more speech than necessary.’” PI Orderat 29 (citations omitted); see Dem. 58, 59-61; Reply 29. The court also enjoined the Act’s prohibition on the “[ulse [of] dark pattems . . . to take any action 10 that the business knows, or has reason to know, is materially detrimental to the child’ s physical health, 11 mental health, orwell-being” (CAADCA § 31(b)(7)). PI Orderat 32; seeid. (“Dark pattems are design 12 features that ‘nudge’ individuals into making certain decisions, such as spending more time on an 13 application.”). In considering the state’ s argument “that dark pattems cause harm to children’s well- 14 being, such as when a child recovering from an eating disorder ‘must both contend with dark pattems 15 that make it difficult to unsubscribe from such content and attempt to reconfigure their data settings 16 in the hope of preventing unsolicited content of the same nature,” the court noted “the lack of 17 objective standard regarding what content is materially detrimental to a child’s well-being,” and 18 concluded “that in the face of such uncertainties about the statute’ s requirements, the statute may cause 19 covered businesses to deny children access to their platforms or content.” PI Orderat 34 (citation 20 omitted); Dem. 55-57; Reply 25-26. 21 Finally, the Act’s terms relating to “[plrofil[ing] a child” unless certain qualifications are met 22 (CAADCA § 31(b)(2)) were likely not appropriately tailored. PI Order at 29. The court explained 23 that while some profiling may cause harm to children’s well-being, “profiling and subsequent targeted 24. content can be beneficial to minors, particularly those in vulnerable populations.” Id. And the Act’s 25 limited allowance of profiling “in the best interest of children” would “likely prevent the dissemination. 26 of a broad array of content beyond that which is targeted by the statute.” Id. at 30; see Dem. 55, 59- 27 61; Reply 28-29. 28 4 DEFENDANTS’ NOTICE OF SUPPLEMENTAL AUTHORITY DATED: September 21, 2023 ‘WILSON SONSINI GOODRICH & ROSATI PC By: /s/ Lauren Gallo White Lauren Gallo White LAUREN GALLO WHITE, SBN 309075 lwhite@wsgr.com ANDREW KRAMER, SBN 321574 akramer@wsgr.com CARMEN SOBCZAK, SBN 342569 csobczak@wsgr.com. WILSON SONSINI GOODRICH & ROSATI PC One Market Plaza, Spear Tower, Suite 3300 10 San Francisco, CA 94105 11 Tel.: 415-947-2000 12 BRIAN M. WILLEN, pro hac vice bwill .com 13 WILSON SONSINI GOODRICH & ROSATI 14 PC 1301 Avenue of the Americas, 40th Floor 15 New York, New York 10019 Tel.: 212-999-5800 16 CHRISTOPHER CHIOU, SBN 233587 17 cchiou@wsgr.com. 18 SAMANTHA MACHOCK, SBN 298852 .com 19 MATTHEW K. DONOHUE, SBN 302144 mdonohue@wsgr.com 20 WILSON SONSINI GOODRICH & ROSATI PC 21 633 W Sth Street 22 Los Angeles, CA 90071 Tel.: 323-210-2900 23 Attorneys for Defendants YouTube, LLC and Google 24. LLC 25 26 27 28 5 DEFENDANTS’ NOTICE OF SUPPLEMENTAL AUTHORITY 1]| DATED: September 21, 2023 COVINGTON& BURLING LLP 2 3 By: /s/ AshleyM. Simonsen 4 Ashley M. Simonsen 5 ASHLEY M. SIMONSEN, SBN 275203 asimonsen@cov.com COVINGTON & BURLING LLP 1999 Avenue of the Stars Los Angeles, CA 90067 Tel.: 424-332-4800 EMILY JOHNSON HENN, SBN 269482 ehenn@cov.com. 10 COVINGTON & BURLING LLP 11 3000 El Camino Real 5 Palo Alto Square, 10th Floor 12 Palo Alto, CA 94306 Tel.: 650-632-4700 13 14 BETH S. BRINKMANN, SBN 129937 bbrinkmann@cov.com. 15 MARK W. MOSIER, pro hac vice forthcoming mmosier@cov.com 16 PHYLLIS A. JONES, pro hac vice Pajones@cov.com 17 PAUL W. SCHMIDT, pro hac vice 18 pschmidt@cov.com MICHAEL X. IMBROSCIO, pro hac vice 19 forthcoming mimbroscio@cov.com 20 COVINGTON & BURLING LLP One City Center 21 850 Tenth Street,NW 22 Washington, DC 20001 Tel.: 202-662-6000 23 Attorneys for Defendants Meta Platforms, Inc. 24. fk/a Facebook, Inc.; Facebook Holdings, LLC; Facebook Operations, LLC; Facebook Payments, 25 Inc.; Facebook Technologies, LLC; 26 Instagram, LLC; and Siculus, Inc. 27 28 6 DEFENDANTS’ NOTICE OF SUPPLEMENTAL AUTHORITY DATED: September 21, 2023 MUNGER, TOLLES & OLSON LLP By: /s/ Jonathan H. Blavin Jonathan H. Blavin JONATHAN H. BLAVIN, SBN 230269 jonathan. blavin@mto.com MUNGER, TOLLES & OLSON LLP 560 Mission Street, 27th Floor San Francisco, CA 94105 Tel.: 415-512-4000 10 ROSE L. EHLER, SBN 29652 Rose.Ehler@mto.com 11 VICTORIA A. DEGTYAREVA, SBN 284199 Victoria. mito.com. 12 ARIEL T. TESHUVA, SBN 324238 Ariel. Teshuva@mito.com 13 MUNGER, TOLLES & OLSON LLP 14 350 South Grand Avenue, 50th Floor Los Angeles, CA 90071 15 Tdl.: 213-683-9100 16 LAUREN A. BELL, pro hac vice 17 Lauren.Bell@mito.com 18 MUNGER, TOLLES & OLSON LLP 601 Massachusetts Ave., NW St. 19 Suite 500 E Washington, D.C. 20001 20 Tel.: 202-220-1100 21 Attorneys for Defendant Snap Inc. 22 23 24. 25 26 27 28 7 DEFENDANTS’ NOTICE OF SUPPLEMENTAL AUTHORITY DATED: September 21, 2023 KING & SPALDING LLP By: /s/ Matthew]. Blaschke MatthewJ. Blaschke MATTHEWJ. BLASCHKE, SBN 281938 mblaschke@kslaw.com. DAVID P. MATTERN, pro hac vice dmattem@kslaw.com KING & SPALDING LLP 50 Califomia Street, Suite 3300 San Francisco, CA 94111 Tdl.: 415-318-1200 10 ALBERT Q. GIANG, SBN 224332 11 i kslaw.com KING & SPALDING LLP 12 633 West Fifth Street, Suite 1600 Los Angeles, CA 90071 13 Tel.: 213-443-4310 14 GEOFFREY DRAKE, pro hac vice 15 kslaw.com KING & SPALDING LLP 16 1180 Peachtree Street, NE, Suite 1600 Atlanta, GA 30309 17 Tel.: 404-572-4600 18 19 DATED: September 21, 2023 FAEGRE DRINKER BIDDLE & REATH LLP 21 22 By: /s/ Tarifa B. Laddon Tarifa B. Laddon 23 TARIFA B. LADDON, SBN 240419 24. tarifaladdon@f i com. 25 DAVID P. KOLLER, SBN 328633 david. koller@faegredrinker.com 26 FAEGRE DRINKER BIDDLE & REATH LLP 27 1800 Century Park East, Suite 1500 Los Angeles, CA 90067 28 Tel.: 310-203-4000 8 DEFENDANTS’ NOTICE OF SUPPLEMENTAL AUTHORITY ANDREA R. PIERSON, pro hac vice andrea.pierson@faegredrinker.com FAEGRE DRINKER BIDDLE & REATH LLP 300 N. Meridian Street, Suite 2500 Indianapolis, IN 46204 Tei: 317-237-1424 Attot mmeys for Defendants TikTok Inc. and ByteDance Inc. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24. 25 26 27 28 9 DEFENDANTS’ NOTICE OF SUPPLEMENTAL AUTHORITY CERTIFICATE OF SERVICE I, Deborah Grubbs, declare: Tam employed in Santa Clara County, State of Califomia. I am over the age of 18 years and not a party to the within action. My business address is Wilson Sonsini Goodrich & Rosati, 650 Page Mill Road, Palo Alto, Califomia 94304-1050. On this date, I served: 1 DEFENDANTS’ NOTICE OF SUPPLEMENTAL AUTHORITY By forwarding the document(s) by electronic transmission via Case in accordance with the Court’s Authorized Electronic Service requiring documentsto be served upon interested parties via the Case Anywhere System. 10 11 lam readily familiar with Wilson Sonsini Goodrich & Rosati’s practice for collection and 12 ng of documents for delivery according to instructions indicated above. In the ordinary course 13 of business, documents would be handled accordingly. 14 I declare under penalty of perjury under the laws of the State of Califomia that the foregoing is 15 true and correct. Executed at Palo Alto, Califomia on September 21, 2023. 16 als Genk 17 Deborah Abels 18 19 20 21 22 23 24. 25 26 27 28 10 DEFENDANTS’ NOTICE OF SUPPLEMENTAL AUTHORITY EXHIBIT A Case 5:22-cv-08861-BLF Document 74 Filed 09/18/23 Page 1 of 45 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION NETCHOICE, LLC, d/b/a NetChoice Case No. 22-cv-08861-BLF Plaintiff, ORDER GRANTING MOTION FOR Vv. 10 PRELIMINARY INJUNCTION 11 ROB BONTA, Attorney General of the State [Re: ECF 29] of California, in his official capacity, 12 Defendant. BE 13 O#8 86 14 RY This suit challenges the enforceability of the California A ge-A ppropriate Design Code Act Ax 15 (“the CAADCA” or “the Act’), which was recently enacted for the stated purpose of affording 16 protections to children when they access the internet. See Cal. Civ. Code § 1798.99.29.! The Act 17 applies to for-profit businesses that collect consumers’ personal information and satisfy other Po 18 criteria relating to business size and revenue. See CAADCA § 30; Cal. Civ. Code § 1798.140. 19 Effective July 1, 2024, the Act imposes a number of requirements on any covered business that 20 “provides an online service, product, or feature likely to be accessed by children.” CAADCA § 21 31. 22 Plaintiff NetChoice, LLC (“NetChoice”) “is a national trade association of online 23 businesses that share the goal of promoting free speech and free enterprise on the Internet.” 24 Compl. §.5, ECF 1. NetChoice’s members include Google, Amazon, Meta, TikTok and many 25 other companies with strong online presences. NetChoice sues Defendant Rob Bonta, Attorney 26 27 ! The CAADCA is codified at California Civil Code §§ 1798.99.28-1798.99.40. When citing to 28 the Act, the Court will cite to the statute’s abbreviated title and last two digits. For example, the Court will cite to Cal. Civil Code § 1798.99.31 as “CAADCA § 31.” Case 5:22-cv-08861-BLF Document 74 Filed 09/18/23 Page 2 of 45 General of the State of California (“the State”), for declaratory and injunctive relief related to the CAADCA, which it asserts is both facially unconstitutional and preempted by federal statute. NetChoice moves for preliminary injunction based on its claims that the CAADCA violates the First Amendment and the dormant Commerce Clause of the United States Constitution, and is preempted by both the Children’s Online Privacy Protection Act (“COPPA”), 15 U.S.C. §§ 6501-6506, and Section 230 of the Communications Decency Act, 47 U.S.C. § 230. See Mot., ECF 29. The State opposes the motion, arguing that the CAADCA regulates conduct— the collection and use of children’s personal information—that does not implicate the First Amendment. See Opp’n, ECF 51. The State also contends that the CAADCA does not violate the 10 dormant Commerce Clause and is not preempted by either COPPA or Section 230. See id. 11 Mindful that the CAADCA was enacted with the unanimous support of California’s 12 Legislature and Governor, the Court has given careful consideration to the motion, the State’s BE 13 opposition, NetChoice’s reply, the supplemental briefs filed by both parties, the briefs filed by O#8 86 14 seven sets of amici curiae, and the oral arguments presented at the hearing on July 27, 2023. The RY Ax 15 Court finds that although the stated purpose of the Act—protecting children when they are 16 online—clearly is important, NetChoice has shown that it is likely to succeed on the merits of its 17 argument that the provisions of the CAADCA intended to achieve that purpose do not pass Po 18 constitutional muster. Specifically, the Court finds that the CAADCA likely violates the First 19 Amendment. The motion for preliminary injunction is GRANTED on that basis. 20 I BACKGROUND 21 The internet has become indispensable to the exchange of information. Many online 22 providers allow users to view content and access services without creating an account, while 23 others require the creation of a free account to access services, and still others require users to pay 24 fees. See Cairella Decl. {§ 4-8, ECF 22; Masnick Decl. {§ 5-6, ECF 29; Roin Decl. {{ 7-9, ECF 25 25; Paolucci Decl. 2, ECF 28. Online providers generally rely on advertising to earn revenue 26 that supports the content and services they offer. See Cairella Decl. 194, 21; Roin Decl. 410. 27 Advertisements are targeted to users based on their interests, which are gleaned from data 28 collected from the users while they are online. See Egelman Decl. {1 13-14, ECF 51-1. Such data 2 Case 5:22-cv-08861-BLF Document 74 Filed 09/18/23 Page 3 of 45 also is used by online providers to tailor content to individual users. See Cairella Decl. 18; Roin Decl. { 2-6. In addition, online providers may sell user data to third parties. See Egelman Decl. qi. Users can manage their online privacy by reading privacy policies before engaging with the provider’s services. See Egelman Decl. 24. Users also may change their privacy settings to block or delete “cookies,” which are data that websites store in consumers’ web browsers, which are then transmitted back to websites when visited again. See id. | 29. However, privacy policies can be difficult to understand and privacy settings are not always user friendly. See id. 1 24-30. These privacy concerns have become increasingly relevant to children, because their 10 intemet use has grown dramatically in recent years. See Radesky Decl. 21-25, ECF 51-5. 11 During the COVID-19 pandemic, children’s access to digital technology and time online went up 12 significantly. See id. 426. Children’s time online increased approximately 52% during the BE 13 pandemic, and heavier technology use habits have persisted. See id. Children depend on the O#8 86 14 intemet for both educational and entertainment purposes. See id. {1 26-29. Unplugging is not a RY Ax 15 viable option. See id. § 29. 16 A federal child privacy law, COPPA, limits the ability of online providers to collect 17 personal information from children. See 15 U.S.C.A. §§ 6501-06. COPPA makes it “unlawful Po 18 for an operator of a website or online service directed to children, or any operator that has actual 19 knowledge that it is collecting personal information from a child, to collect personal information 20 from a child in a manner that violates the regulations prescribed” under the statute. 15 U.S.C. § 21 6502(a)(1). “Child” is defined as an individual under the age of 13. 15 U.S.C. § 6501(1). The 22 applicable regulations require the operator to obtain parental consent prior to any collection, use, 23 or disclosure of personal information from children. See 16 C.F.R. § 312.3(b). 24 The California Consumer Privacy Act (“CCPA”) imposes limits on the collection of 25 personal information from users generally, requiring among other things that online providers 26 inform users of the categories of personal information to be collected and the purposes of such 27 collection. See Cal. Civ. Code § 1798.100(a)(1). The CCPA defines “personal information” to 28 include any information that “relates to, describes, is reasonably capable of being associated with, 3 Case 5:22-cv-08861-BLF Document 74 Filed 09/18/23 Page 4 of 45 or could reasonably be linked, directly or indirectly, with a particular consumer or household.” Cal. Civ. Code § 1798.140(v). It is against this backdrop that the CAADCA was enacted. The CAADCA goes far beyond the scope of protections offered by COPPA and the CCPA. Whereas COPPA limits the collection of user data by operators of websites and services “directed to children,” 15 U.S.C. § 6502(a)(1), the CAADCA “declares that 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,” CAADCA § 29. COPPA protects children under the age of 13, see 15 U.S.C. § 6501(1), while the CAADCA protects children under the age of 18, see CAADCA § 30(b)(1). COPPA 10 gives parents authority to make decisions about use of their children’s personal information, see 11 16 C.F.R. § 312.3(b), and the CCPA gives users authority to make decisions about their own 12 personal information, see Cal. Civ. Code § 1798.135. In contrast, the CAADCA requires online BE 13 providers to create a Data Protection Impact Assessment (“DPIA”) report identifying, for each O#8 86 14 offered online service, product, or feature likely to be accessed by children, any risk of material RY Ax 15 detrimentto children arising from the provider’s data management practices. See CAADCA § 16 30(a)(1). Providers must create a “timed plan to mitigate or eliminate” the risks identified in the 17 DPIA “before the online service, product, or feature is accessed by children,” id. § 30(a)(2), and Po 18 must provide the DPIA reports to the California Attorney General upon written request, see id. § 19 30(a)(2). The CAADCA also requires that online providers comply with a list of enumerated 20 mandates and prohibitions, discussed in detail below. See id. § 31(a)-(b) 21 Covered businesses must complete the required DPIA reports and satisfy related 22 requirements by July 1, 2024, and continue to do so on an ongoing basis. See CAADCA §§ 31, 23 33. The CAADCA authorizes the California A ttomey General to bring a civil enforcement action 24 against any business that fails to comply with the Act’s requirements. See id. § 35. Violators are 25 subject to civil penalties of $2,500 per child for each negligent violation and $7,500 for each 26 intentional violation. See id. 27 NetChoice filed this suit on December 14, 2022, challenging the CAADCA as facially 28 unconstitutional and preempted by federal statute. The complaint asserts the following claims: 4 Case 5:22-cv-08861-BLF Document 74 Filed 09/18/23 Page 5 of 45 (1) violation of the First and Fourteenth Amendments to the U.S. Constitution, and Article I, Section 2(a) of the California Constitution; (2) violation of the Fourth Amendmentto the U.S. Constitution; (3) void for vagueness under the First Amendment and Due Process Clause of the U.S. Constitution, and Article I, Section 7(a) of the California Constitution; (4) violation of the dormant Commerce Clause of the U.S. Constitution; (5) preemption by COPPA; and (6) preemption by Section 230. Compl. {| 76-122. The complaint requests declaratory and injunctive relief prohibiting enforcement of the CAADCA. NetChoice now seeks a preliminary injunction enjoining enforcement of the CAADCA pending disposition of the suit. 10 II. LEGAL STANDARD 11 “Courts consider four factors in deciding whether to grant a preliminary injunction: the 12 plaintiff's likelihood of success on the merits; her likelihood of suffering irreparable harm in the BE 13 absence of preliminary relief; whether the balance of equities tips in her favor; and whether an O#8 86 14 injunction is in the public interest.” Garcia v. City of Los Angeles, 11 F.4th 1113, 1118 (9th Cir. RY Ax 15 2021) (citing Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). v2 16 In this circuit, “[l]ikelihood of success on the merits is the most important factor. 17 Apartment Ass'n of L.A. Cuty., Inc. v. City of Los Angeles, 10 F.4th 905, 912 (9th Cir. 2021) Po 18 (quoting California v. Azar, 911 F.3d 558, 575 (9th Cir. 2018)). “It is well-established that the 19 first factor is especially important when a plaintiff alleges a constitutional violation and injury.” 20 Baird v. Bonta, - FAth ----, 2023 WL 5763345, at *3 (9th Cir. Sept. 7, 2023). “Ifa plaintiffin 21 such a case shows he is likely to prevail on the merits, that showing usually demonstrates he is 22 suffering irreparable harm no matter how brief the violation.” Id. Finally, “[wJhen, like here, the 23 nonmovant is the government, the last two Winter factors merge.” Id. at *2 (quotation marks and 24 citation omitted). 25 26 2 Where the plaintiff cannot show a likelihood of success on the merits, “‘serious questions going to the merits’ and a hardship balance that tips sharply toward the plaintiff can support issuance of 27 an injunction, assuming the other two elements of the Winter test are also met.” All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1132 (9th Cir. 2011). The Court need not apply this alternative 28 formulation of the Winter test here because, as discussed below, NetChoice makes a strong showing on likelihood of success and on the other Winter factors. 5 Case 5:22-cv-08861-BLF Document 74 Filed 09/18/23 Page 6 of 45 Til. DISCUSSION A Likelihood of Success on the Merits NetChoice argues that it is likely to succeed on the merits of its claims that the Act violates free speech rights under the First Amendment (Claims 1 and 3), violates the dormant Commerce Clause (Claim 4), and is preempted by both COPPA (Claim 5) and Section 230 (Claim 6). See Mot. 1; Compl. 9] 76-122. 1 First Amendment (Claims 1 and 3) Claim 1 asserts that the CAADCA violates the First Amendment because it is an unlawful prior restraint on protected speech, is unconstitutionally overbroad, and regulates protected 10 expression but fails strict scrutiny or any lesser standard of scrutiny that may apply. See Compl. 11 {11 76-88. Claim 3 asserts that the CAADCA is void for vagueness under the First Amendment. 12 See id. 93-103. NetChoice argues that it is likely to succeed on its First Amendment claims BE 13 because the CAADCA: (1) is an unlawful prior restraint; (2) is unconstitutionally overbroad; (3) O#8 86 14 is void for vagueness; and (4) is subject to and fails strict scrutiny. Mot. 7-22. RY Ax 15 Before taking up these arguments, the Court notes that both parties appear to have accepted 16 the relaxed standard for standing in a First Amendment facial challenge. That is, although the 17 general rule of standing is that a party may not challenge a statute’s constitutionality “on the Po 18 ground that it may conceivably be applied unconstitutionally to others,” Broadrick v. Oklahoma, 19 413 U.S. 601, 610 (1973), a party making a First Amendment claim has standing to challenge the 20 impact of a regulation on both “its own expressive activities, as well as those of others,” $.0.C. 21 Inc. v. County of Clark, 152 F.3d 1136, 1142 (9th Cir. 1998). Accordingly, the parties have 22 made—and the Court will consider—arguments about the CAADCA’s alleged impact on the 23 expressive activities of individuals and entities who are not NetChoice members. 24 Turning to NetChoice’s four First Amendment arguments on likelihood of success, the 25 Court first addresses the argument that the A ct regulates protected expression and fails the 26 applicable level of scrutiny. Because the argument is dispositive, the Court need not address 27 NetChoice’s additional First Amendment arguments based on prior restraint, overbreadth, and 28 vagueness. Case 5:22-cv-08861-BLF Document 74 Filed 09/18/23 Page 7 of 45 a Legal Framework re Scrutiny for Regulations of Speech “The First Amendment generally prevents government from proscribing speech, [] or even expressive conduct, [] because of disapproval of the ideas expressed.” R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992) (internal citations omitted). A law compelling speech is no less subject to First Amendment scrutiny than a law prohibiting speech. Frudden v. Pilling, 742 F.3d 1199, 1203 (9th Cir. 2014) (citing W. Va. State Bd. Of Educ. v. Barnette, 319 U.S. 624, 633-34 (1943)). The threshold question in a free speech analysis is whether the challenged law invokes the First Amendment at all. See Int’l Franchise Ass'n v. City of Seattle, 803 F.3d 389, 408 (9th Cir. 2015). “All manner of speech—from ‘pictures, films, paintings, drawings, and engravings,’ to 10 ‘oral utterance and the printed word’—qualify for the First Amendment's protections; no less can 11 hold true when it comes to speech . . . conveyed over the Internet.” 303 Creative LLC v. Elenis, 12 600 U.S. —, 143 S. Ct. 2298, 2312 (2023) (citations omitted). That is, the First Amendment’s BE 13 protections apply not only to written or verbal speech, but to any expressive conduct. See, e.g., O#8 86 14 Ward v. Rock Against Racism, 491 U.S. 781, 790 (1989) (“Music, as a form of expression and RY Ax 15 communication, is protected under the First Amendment.”). In determining whether a law 16 regulates protected expression, courts evaluate “whether [activity] with a ‘significant expressive 17 element’ drew the legal remedy or the ordinance has the inevitable effect of ‘singling out those Po 18 engaged in expressive activity.’”” Jnt’l Franchise, 803 F.3d at 408 (quoting Arcara v. Cloud 19 Books, Inc., 478 U.S. 697, 706-07 (1986)). For example, a tax on paper and ink that in effect 20 “single[s] out the press for special treatment” regulates protected expression, although the 21 application of a general sales tax to newspapers does not. See Minneapolis Star & Tribune Co. v. 22 Minn. Comm’r of Revenue, 460 U.S. 575, 581-82 (1983). A regulation that restricts conduct 23 without a “significant expressive element” is not subject to any level of First Amendment scrutiny 24 See HomeAway.com, Inc. v. City of Santa Monica, 918 F.3d 676, 684 (9th Cir. 2019); see also 25 Sorrell v. IMS Health Inc., 564 U.S. 552, 567 (2011) (“[{T]he First Amendment does not prevent 26 restrictions directed at commerce or conduct from imposing incidental burdens on speech.”). 27 If a court finds that a challenged law regulates some manner of protected expression, it 28 must then “determine the scope of the [regulated] speech” in order to apply the appropriate level 7 Case 5:22-cv-08861-BLF Document 74 Filed 09/18/23 Page 8 of 45 of scrutiny. Yim v. City of Seattle, 63 F.4th 783, 791 (9th Cir. 2023). There are several levels of scrutiny that may apply, depending on the type of expression at issue. 1 Strict Scrutiny If the challenged regulation restricts only non-commercial speech, the level of scrutiny depends on whether the law is content based or content neutral. “Government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed,” that is, if the regulation “draws distinctions based on the message a speaker conveys.” Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015) (citations omitted). A law is also content based if, even though facially neutral, it “cannot be justified without reference to 10 the content of the regulated speech, or. . . were adopted by the government because of 11 disagreement with the message the speech conveys.” Id. at 164 (internal punctuation marks and 12 citation omitted). If the court determines a law is content based, it applies strict scrutiny, BE 13 “regardless of the government’s benign motive, content-neutral justification, or lack of ‘animus O#8 86 14 toward the ideas contained’ in the regulated speech.” Porter v. Martinez, 68 F.4th 429, 439 (9th RY Ax 15 Cir. 2023) (citations omitted). Strict scrutiny “requires the Government to prove that the 16 restriction furthers a compelling interest and is narrowly tailored to achieve that interest.” Reed, 17 576 U.S. at 171; see also Berger v. City of Seattle, 569 F.3d 1029, 1050 (9th Cir. 2009) (“Under Po 18 that standard [of strict scrutiny], the regulation is valid only if it is the least restrictive means 19 available to further a compelling government.) (citing United States v. Playboy Ent. Grp., Inc., 20 529 U.S. 803, 813 (2000)). 21 ii. Intermediate Scrutiny 22 “By contrast, a content-neutral regulation of [non-commercial] expression must meet the 23 less exacting standard of intermediate scrutiny.” Porter, 68 F.4th at 439 (citation omitted). Under 24 this lower standard, “a regulation is constitutional ‘if it furthers an important or substantial 25 governmental interest; if the governmental interest is unrelated to the suppression of free 26 expression; and if the incidental restriction on alleged First Amendment freedoms is no greater 27 than is essential to the furtherance of that interest.’” Id. (quoting United States v. O'Brien, 394 28 U.S. 367, 377 (1968)). Case 5:22-cv-08861-BLF Document 74 Filed 09/18/23 Page 9 of 45 iii. Commercial Speech Scrutiny If a statute regulates only commercial speech—i.e., “‘expression related solely