Dear California Governor Newsom and Attorney General Bonta: you really don’t have to be the opposite end of the extremists in Florida and Texas. You don’t have to lie to your constituents and pretend losses are wins. Really. Trust me.
You may recall that the Attorneys General of Texas and Florida have taken to lying to the public when they lose big court cases. There was the time when Texas AG Ken Paxton claimed “a win” when the Supreme Court did exactly the opposite of what he had asked it to do.
Or the time when Florida AG Ashley Moody declared victory after the Supreme Court made it quite clear that Florida’s social media law was unconstitutional, but sent it back to the lower court to review on procedural grounds.
And now it looks like Newsom and Bonta are doing the same sort of thing, claiming victory out of an obvious loss, just on the basis of some procedural clean-up (ironically, the identical procedural clean-up that Moody declared victory over).
As you’ll recall, we just wrote about the Ninth Circuit rejecting California’s Age Appropriate Design Code (AADC) as an obvious First Amendment violation (just as we had warned both Bonta and Newsom, only to be ignored). However, because of the results in the Supreme Court decision in Moody, the Ninth Circuit sent some parts of the law back to the lower court.
The details here are kind of important. In the Moody decision, the Supreme Court said for there to be a “facial challenge” against an entire law (i.e., a lawsuit saying “this whole law is unconstitutional, throw it out”), the lower courts have to consider every part of the law and whether or not every aspect and every possible application is unconstitutional. In the Texas and Florida cases, the Supreme Court noted that the lower courts really only reviewed parts of those laws and how they might impact a few companies, rather than really evaluating whether or not some of the laws were salvageable.
However, the ruling also made quite clear that any law that seeks to tell social media companies how to moderate is almost certainly a violation of the First Amendment.
In the challenge to the AADC, most of the case (partly at the request of the district court judge!) focused on the “Data Protection Impact Assessment” (DPIA) requirements of the law. This was the main part of the law, and the part that would require websites to justify every single feature they offer and explain how they will “mitigate” any potential risks to kids. The terrible way that this was drafted would almost certainly require websites to come up with plans to remove content the California government disapproved of, as both courts recognized.
But the AADC had a broader scope than the DPIA section.
So, the Ninth Circuit panel sent part of the law back to the lower court following the requirements in the Moody ruling. They said the lower court had to do the full facial challenge, exploring the entirety of the law and how it might be applied, rather than throwing out the whole law immediately.
However (and this is the important part), the Ninth Circuit said that on the DPIA point specifically, which is the crux of the law, there was enough briefing and analysis to show that it was obviously a violation of the First Amendment. It upheld the injunction barring that part of the law from going into effect.
That doesn’t mean the rest of the law is good or constitutional. It just means that now the lower court will need to examine the rest of the law and how it might be applied before potentially issuing another injunction.
In no way and in no world is this a “win” for California.
But you wouldn’t know that to hear Newsom or Bonta respond to the news. They put out a statement that suggests they either don’t know what they’re talking about or they’re hoping the public is too stupid to realize this. It’s very likely the latter, but it’s a terrible look for both Newsom and Bonta. It suggests they’re so deep in their own bullshit that they can’t be honest with the American public. They supported an unconstitutional bill that has now been found to be unconstitutional by both the district and the appeals court.
First up, Newsom:
“California enacted this nation-leading law to shield kids from predatory practices. Instead of adopting these commonsense protections, NetChoice chose to sue — yet today, the Court largely sided with us. It’s time for NetChoice to drop this reckless lawsuit and support safeguards that protect our kids’ safety and privacy.”
Except, dude, they did not “largely side” with you. They largely sided with NetChoice and said there’s not enough briefing on the rest. I mean, read the fucking ruling, Governor:
We agree with NetChoice that it is likely to succeed in showing that the CAADCA’s requirement that covered businesses opine on and mitigate the risk that children may be exposed to harmful or potentially harmful materials online, Cal. Civ. Code §§ 1798.99.31(a)(1)–(2), facially violates the First Amendment. We therefore affirm the district court’s decision to enjoin the enforcement of that requirement, id., and the other provisions that are not grammatically severable from it…
And, no, the law does not shield kids from predatory practices. That’s the whole point that both courts have explained to you: the law pressures websites to remove content, not change conduct.
So, why would NetChoice drop this lawsuit that it is winning? Especially when letting this law go into effect will not protect kids’ safety and privacy, and would actually likely harm both, by encouraging privacy-destroying age verification?
As for Bonta:
“We’re pleased that the Ninth Circuit reversed the majority of the district court’s injunction, which blocked California’s Age-Appropriate Design Code Act from going into effect. The California Department of Justice remains committed to protecting our kids’ privacy and safety from companies that seek to exploit their online experiences for profit.”
Yeah, again, it did not “reverse the majority.” It upheld the key part, and the only part that was really debated in the lower court. It sent the rest back to be briefed on, and it could still be thrown out once the judges see what nonsense you’ve been pushing.
It wasn’t entirely surprising when Paxton and Moody pulled this kind of shit. After all, the GOP has made it clear that they’re the party of “alternative facts.” But the Democrats don’t need to do the same at the other end of the spectrum. We’ve already seen that Newsom’s instincts are to copy the worst of the GOP, but in favor of policies he likes. This is unfortunate. We don’t need insufferable hacks running both major political parties.
Look, is it so crazy to just ask for our politicians to not fucking lie to their constituents? If they can’t be honest about basic shit like this, what else are they lying about? You lost a case because you supported a bad law. Suck it up and admit it.
