Minors in the Media: Federal Judges Overturn Child Protection Legislation Amid Allegations of Censorship

By Henessis Umacata

Henessis Umacata  is a Freshman at the University of Pennsylvania majoring in Philosophy, Politics, and Economics.

The growing lure of social media on young users is motivating state legislators to motion for new online restrictions to protect the health and safety of children. In response, Netchoice, a national trade association for online businesses, filed lawsuits alleging that states would be violating constitutional rights, including the freedom of speech. [1] Once placed under review, the proposed bills were reversed or put on hold by federal judges. The question that remains is: “Do prohibitions on children’s access to social media hinder the free speech rights of social media companies?

In August of 2022, California signed the “Age Appropriate Design Code Act,” which was expected to go into effect in July 2024. [2] Regarded as groundbreaking by legislative officials, the act would become the first in the nation to adopt protections for children’s online privacy. Inspired by the United Kingdom’s Age Appropriate Design Code, this law aimed to limit companies’ use of children’s data for commercial purposes and reduce risks associated with privacy. [3]

Companies impacted by CAADCA would have to complete data protection impact assessments to estimate the age of child users. Additionally, high privacy settings and clear terms of services would have to be implemented and minors would have to be notified when their locations were monitored. [4] Prohibitions mentioned in the bill's proposal included the use of personal information to push “materially detrimental” content and the collection and sharing of data without legitimate justification. [5]

Furthermore, California’s act identified anyone under eighteen as children, which increased its range of applicability in comparison to the Children's Online Privacy Protection Act. Although California was the first to implement direct restrictions on online companies, COPPA granted parents control over the online collection, use, and disclosure of children’s personal information. [6] However, COPPA did not restrict children’s access to content and identified children as those under 13. For the act to impose its regulations, moreover, it relied on children’s honest reports of their ages, allowing room for violations of terms of services and uncertainty. 

Once California's bill was unanimously approved and signed, other states such as Arkansas, Texas, Utah, and Montana followed by proposing their individual laws. [7] Their bills would impose age restrictions, the potential ban of the use of specific platforms entirely, and require parental consent for access to content. 

On December 14, 2022, NetChoice, a corporation representing large companies such as Pinterest, TikTok, and Snap Inc., announced its lawsuit against California in a case titled NetChoice v Bonta. They later proceeded to sue other states that motioned for similar protections.

In their complaint, the trade association claimed that CAADCA “expands government power over online speech under the guise of protecting children”. In granting the government authority to censor information, they claimed that courts would jeopardize child safety. [9] Additionally, NetChoice asserted that the enforcement of such legislation would violate the First and Fourth Amendments, the Supremacy Clause, and the Commerce Clause.

Regarding the First Amendment, Netchoice stated that CAADCA’s use of vague terms such as “materially detrimental” and “potentially harmful” would force online businesses into self-censorship due to the fear of sanctions. [10] Furthermore, NetChoice argued that CAADCA’s requirement to configure information to high privacy settings for content “likely to be assessed by children '', would impact an unnecessary number of major media outlets. [11] 

Therefore, the enforcement of these regulations would provide the government an excess of power to supervise online activity, constraining the liberties of online media companies.

On September 18, 2023, a federal judge of California state issued a temporary block on the act, and the same blocks were implemented in Arkansas and Texas. [12] For many parents, government officials, and other proponents of these laws, the overturnings of these bills were considered major setbacks in the progression toward online child safety and health. 

In support of legislation aimed at restricting children’s online access, the United States Surgeon General Dr. Vivek Murphy issued a new advisory about social media’s harmful impact on the mental health of children and adolescents. In his report, Dr. Murphy highlighted social media’s role in anxiety, negative body image, excessive hours of screen time, and addiction to specific platforms. [13]

Advocates for children’s safety continue to argue that CAADCA’s efforts to insulate children online provide guidelines for privacy settings and do not silence companies’ freedom of speech. 

In their opposition to NetChoice’s motion, the state of California claimed that CAADCA only “regulates only non expressive business practices” and should therefore, not trigger any First Amendment scrutiny. [14] 

Meanwhile, members of Congress continue to motion for bills that shield children online with laws such as the Kids Online Safety Act and COPPA 2.0. [15] NetChoice’s lawsuit currently remains under review by California’s district court, and the ruling is expected to significantly impact future judicial decisions regarding online privacy and content accessibility.



[1] Chavez, Krista. “NetChoice Sues California to Protect Families & Free Speech Online.” NetChoice, October 6, 2023. https://netchoice.org/netchoice-sues-california-to-protect-families-free-speech-online/.
[2] Gedye, Grace. “Lawmakers Approve Groundbreaking Internet Privacy Law for Kids.” CalMatters, September 6, 2022. https://calmatters.org/economy/2022/09/internet-privacy-kids-california/.
[3] Hunton Andrews Kurth’s Privacy and Cybersecurity. “NetChoice Seeks to Block the California Age-Appropriate Design Code.” Legal News & Business Law News, September 16, 2023. https://www.natlawreview.com/article/netchoice-seeks-to-block-california-age-appropriate-design-code.
[4] Office of the Assistant Secretary for Health (OASH). “Surgeon General Issues New Advisory about Effects Social Media Use Has on Youth Mental Health.” HHS.gov, May 23, 2023. https://www.hhs.gov/about/news/2023/05/23/surgeon-general-issues-new-advisory-about-effects-social-media-use-has-youth-mental-health.html.
“Senate Commerce Committee Approves 11 Bills, Including Bipartisan Children’s Online Privacy Legislation.” U.S. Senate Committee on [5] Commerce, Science, & Transportation, July 27, 2023. https://www.commerce.senate.gov/2023/7/senate-commerce-committee-approves-11-bills-including-bipartisan-children-s-online-privacy-legislation#:~:text=July%2027%2C%202023,Online%20Safety%20Act%20(KOSA).
[6] Singer, Natasha. “New Laws on Kids and Social Media Are Stymied by Industry Lawsuits.” The New York Times, October 12, 2023. https://www.nytimes.com/2023/10/12/technology/tech-children-kids-laws.html.
[7] Tao, Joyce. “Lawsuit Challenges Constitutionality of California Age-Appropriate Design Code.” California Lawyers Association, February 9, 2023. https://calawyers.org/privacy-law/lawsuit-challenges-constitutionality-of-california-age-appropriate-design-code/.
United States District Court Northern District of California San Jose ... Accessed October 22, 2023. https://netchoice.org/wp-content/uploads/2023/09/NETCHOICE-v-BONTA-PRELIMINARY-INJUNCTION-GRANTED.pdf. 
[8] NetChoice v. Bonta and First Amendment limits on protecting children online, November 1, 2023. https://crsreports.congress.gov/product/pdf/LSB/LSB11071.