Brief of Amici Curiae Chamber of Progress; Consumer Technology Association; First Amendment Coalition; Information Technology & Innovation Foundation; IP Justice; LGBT Tech; The Trevor Project; and Woodhull Freedom Foundation in Support of NetChoice.

STATEMENT OF INTEREST

Amici are nonprofit organizations committed to promoting a society in which all people benefit from technology and interconnectivity and all people enjoy the speech opportunities available through a safe, open, and equitable Internet.

SUMMARY OF ARGUMENT

The Internet has flourished under the strong First Amendment protections affirmed in Reno v. ACLU, 521 U.S. 844 (1997). Websites today publish an endless multitude of content, offering diverse perspectives and ideas, shining in technicolor for anyone to access at the click of a button or tap of a screen. Starting from a young age, people use websites to express themselves, connect with others, and learn about a world beyond what they experience in their everyday lives. Websites are the “principal sources for” everything from learning about “current events” to “speaking and listening in the modern public square” to “otherwise exploring the vast realms of human thought and knowledge.” Packingham v. North Carolina, 582 U.S. 98, 99 (2017).

California’s AADC would completely upend this bustling marketplace of ideas. Although characterized as a privacy statute, the AADC fundamentally regulates speech. It would impose an arbitrary system of prior restraints and restrict speech based on content, viewpoint, and speaker, forcing websites to ban and block any content that someone might consider inappropriate for children. Websites would also be forced to employ privacy-invasive age-verification methods, creating a major privacy risk at odds with California’s purported aims. And upholding the law would invite other states to adopt speech-based restrictions on websites, fracturing the Internet as each state pursues its own agenda regarding what is considered “safe” for children. Equally concerning is the potential for a single state to be left to dictate national Internet policy in an effort to resolve this fractured array of state laws.

The AADC is likely to lead to substantially more harm than it prevents, disproportionately harming marginalized groups like women, communities of color, LGBTQ+ individuals, and religious minorities. For example, discussion of or access to reproductive and sexual health information may be blocked as being potentially harmful. Californians—and potentially other Americans—will need to wait until their 18th birthday to access vast amounts of information available to other American minors, and even then, they will have access conditioned on compliance with invasive age-verification measures. The AADC’s vague standards will also dampen diverse content, denying marginalized groups an effective voice and access to critical resources. And the AADC’s privacy harms will most acutely affect marginalized groups, who often rely on websites’ strong privacy and speech protections.

Although protecting children’s online privacy is a crucial policy goal, that does not give states license to adopt sweeping measures that run roughshod over the First Amendment. To maintain the Internet’s vibrancy and diversity, the Court should affirm.

ARGUMENT

1. 1. The AADC Reaches Far Beyond Privacy, Targeting Online Speech and Violating the First Amendment.

a. Websites Engage in Speech by Publishing Their Own Content and Through Content Moderation, Which Is a Form of Editorial Discretion.

b. Websites Also Provide Crucial Venues for Speech To Occur in the Modern Age.

c. The AADC Curtails Speech by Imposing a System of Prior Restraints and Telling Websites How To Moderate Content.

2. Upholding the AADC Would Be Harmful to Internet Users, Especially Youth and Marginalized Communities.

a. The AADC Will Strip Online Discourse of Its Vibrancy and Diversity.

i. Websites might ban all content that could be deemed inappropriate for children.

ii. Websites might also block people from accessing enormous amounts of online content until their 18th birthday.

b. The AADC Jeopardizes Privacy by Forcing Websites To Adopt Age Verification Measures.

3. Upholding the AADC Would Fragment the Internet, Harming Internet Users Even Further.

Read the full brief (PDF).

CONCLUSION

To ensure the Internet’s continued vibrancy and diversity for all users, the panel should affirm.