[00:00:01] Speaker 00: Good morning, Your Honors. [00:00:03] Speaker 00: Kristen Lisko on behalf of the Attorney General, and I'd like to reserve about five minutes for rebuttal. [00:00:07] Speaker 00: I'll try to keep an eye on the clock. [00:00:10] Speaker 00: May it please the court the California legislature unanimously enacted the California age appropriate design code act to protect children and their privacy online The legislature was motivated by documented harms to children from online companies data and privacy practices including addiction like behaviors lack of sleep negative impact on educational attainment exploitation and detrimental mental health outcomes and [00:00:35] Speaker 01: Council, I think all of us would say the objective is one that we could only laud. [00:00:42] Speaker 01: But we are dealing with the First Amendment here, and we have some questions about the nature of what is included in this bill. [00:00:52] Speaker 01: I'm going to use an abbreviation, but I want to make certain the record is clear. [00:00:56] Speaker 01: I'm talking about the Data Protection Impact Assessment, which is at Civil Code 1798.99.33A. [00:01:05] Speaker 01: I'm going to call it the DPIA, okay? [00:01:10] Speaker 01: This law forces the private parties to opine what they think is a material detrimental to children. [00:01:20] Speaker 01: How isn't that compelled speech? [00:01:23] Speaker 00: So if we're talking about just the DPIA report itself, I don't think that we would dispute that the requirement to prepare a report can be considered compelled speech. [00:01:32] Speaker 01: Okay, and if it is compelled speech, don't we run into a First Amendment problem? [00:01:37] Speaker 00: But we would argue that it's constitutional as a disclosure, since it's a factual, non-controversial disclosure. [00:01:43] Speaker 04: Well, you talk about this is framed as data management practices, but isn't the first of the data management practices that are called on for these companies, whether the content of what is provided online is potentially harmful? [00:02:00] Speaker 04: How is that not a content-based restriction rather than a pure factual disclosure? [00:02:06] Speaker 00: So I think that what's critical is that the purpose of the DPIA requirement is to look at how the data practices pose risks of material detriment to children. [00:02:15] Speaker 04: And so in the process... Do the data practices include an evaluation of whether the company's online content is harmful to children? [00:02:24] Speaker 00: No, the data practices would not. [00:02:26] Speaker 00: Our understanding of the statute is that the DPIA requirement would look to how does the use of data potentially expose children to harmful content, not into an analysis of an exhaustive array of what content is harmful or not. [00:02:39] Speaker 00: And I can provide an example. [00:02:41] Speaker 00: For instance, [00:02:42] Speaker 00: A company might use data for targeted or behavioral advertisements where they take the personal information they've collected to try to determine which advertisements a user is more likely to click on. [00:02:53] Speaker 00: So perhaps they then would use advertisements that might advertise products that are illegal to sell to minors, tobacco or alcohol products. [00:03:00] Speaker 00: Another example might be a company may use data [00:03:03] Speaker 00: to determine what order to display post-it. [00:03:07] Speaker 00: Post-it has more likes. [00:03:08] Speaker 04: Okay, those seem to be addressed by Romanettes 6, 7, and 8, or perhaps 7 and 8, but there's also Romanettes 1, which speaks to content, 2, which speaks to contact, 3, to whether it permits children to witness harmful conduct, which, again, seems to be content. [00:03:28] Speaker 04: What are examples of those that you think would not trigger content-based scrutiny under the First Amendment? [00:03:33] Speaker 00: So again, I think that the focus of this analysis is not on the content itself. [00:03:38] Speaker 00: There's no requirement to look through and decide what type of content is harmful. [00:03:42] Speaker 00: The question is about the data use. [00:03:44] Speaker 00: So an example may well be if you use prior search history, for instance, [00:03:50] Speaker 00: So, say a minor child does a research project on eating disorders for a health class, and then that data, that search data is put into an algorithm, and then videos that promote eating disorders are recommended to the minor. [00:04:02] Speaker 00: That's an example of how data practices might lead to minors using harmful content. [00:04:09] Speaker 01: It seems to me that you require these companies to make [00:04:16] Speaker 01: a decision to have an opinion about the nature of what's involved there. [00:04:21] Speaker 01: As you know, a lot of the amicus briefs and so on talked about things like that can disturb children generally, like climate change or wars or even internally local violence and so on and so on. [00:04:37] Speaker 01: But you're asking these companies to make, have an opinion about these things and express it. [00:04:44] Speaker 01: And it's not like [00:04:46] Speaker 01: like a cigarette thing. [00:04:48] Speaker 01: There's so much tar in this and so on. [00:04:50] Speaker 01: It's not a commercial thing. [00:04:51] Speaker 01: You're asking them to make a determination, and that's what I'm troubled about. [00:04:55] Speaker 01: It seems to me that when you are asking them to make that, it's compelled speech, and you do bring in the First Amendment, and probably at a strict scrutiny level. [00:05:04] Speaker 01: What am I missing? [00:05:06] Speaker 00: A couple of responses to that, Your Honor. [00:05:08] Speaker 00: first, the DPA requirement certainly does not require companies to make an exhaustive list of what content is harmful. [00:05:15] Speaker 01: And perhaps it might be helpful to... Well, maybe not an exhaustive list, but they have to state, with respect to any particular app [00:05:22] Speaker 01: how it would be harmful to children. [00:05:24] Speaker 01: They've got to consider these things, right? [00:05:26] Speaker 00: They need to consider the data use. [00:05:27] Speaker 00: We would not argue that they need to look and decide what content's harmful. [00:05:30] Speaker 00: And it may be helpful if we look at, there is a sample of a DPIA in the record. [00:05:35] Speaker 00: And this is on, I don't have the volume number in front of me, but ER 551 has an example of a DPIA that does this analysis. [00:05:41] Speaker 00: This is from the UK, but the law is clear. [00:05:44] Speaker 02: But counsel, going to Judge Smith's question, I'm looking, for example, at [00:05:51] Speaker 02: two little eyes, whether the design of the online product, service or feature could lead to children experiencing or being targeted by harmful or potentially harmful contacts on the online product, service or feature. [00:06:09] Speaker 02: And when I read that as an example, it strikes me as doing exactly what Judge Smith described it as doing, as opposed to some high-level data analysis. [00:06:24] Speaker 00: So, just again, I think our view of how the statute operates is that there's no requirement [00:06:32] Speaker 00: I think everyone here would agree that there is harmful content that exists in the world for children, and there are harmful contacts for children, people who seek to exploit them. [00:06:40] Speaker 00: I don't think anyone disputes that fact. [00:06:42] Speaker 01: There may be dispute about what falls within there, but we all- Are you saying, are you confessing, if you will, that the state is trying to regulate the content? [00:06:50] Speaker 00: No, Your Honor. [00:06:50] Speaker 00: We're concerned about the data collection practices, so if we- Seriously, I mean, come on. [00:06:56] Speaker 01: If data is just a report of numbers and what it says, you're requiring them to make a determination whether what they have there is harmful to children. [00:07:08] Speaker 01: It's not just numbers. [00:07:09] Speaker 01: They have to decide whether it is on some basis. [00:07:13] Speaker 01: To me, I'm looking for you to correct me if I'm wrong, to me that's a requirement to moderate or admit content. [00:07:22] Speaker 01: And if you get there, then you've got a First Amendment challenge, right? [00:07:26] Speaker 00: Again, we disagree that that's how the statute operates, Your Honor. [00:07:29] Speaker 00: If you look at the language, it says to identify the purpose of the service, how it uses children's information, and the risk of material detriment to children that arise from the data management practices. [00:07:42] Speaker 04: But they only need to do that with respect to harmful content. [00:07:44] Speaker 04: Who decides what's harmful? [00:07:46] Speaker 00: So again, if we look at it this way, and again, I think maybe looking at the example with the record of what a DPA looks like. [00:07:54] Speaker 04: Well, an example from a jurisdiction that does not have a First Amendment is probably less helpful for us. [00:08:00] Speaker 00: No, but I think the point that I'm attempting to make, Your Honor, is that [00:08:04] Speaker 00: In the world in which we all agree there's harmful content out there, one can analyze the extent to which such content could be exposed to minors by data practices without having to get into, what is that whole universe of content? [00:08:15] Speaker 00: I don't think anyone disputes harmful content out there. [00:08:18] Speaker 00: And so the question isn't, what is that universe of harmful content we're concerned about? [00:08:22] Speaker 00: What is that world of things we're worried about might hurt children? [00:08:27] Speaker 00: It's, how does the way you use their data potentially expose them to that universe, which we know is not a norm? [00:08:32] Speaker 04: But what happens on the margin if there's a disagreement about whether the triggering content is harmful? [00:08:38] Speaker 04: So, for example, Judge Smith's examples in the briefs about images of war or climate change or things that do seem to have harmful effects on children but are also true and protected by the First Amendment. [00:08:54] Speaker 00: So the question is simply the extent to which this harmful content, which again, it's not a universe that we need to define, whether the data practices might expose children to it. [00:09:07] Speaker 00: But I do want to take a further step back and just note that there may be some of these difficult questions that we quibble at the margins, but this is a facial challenge that was brought by plaintiffs. [00:09:15] Speaker 00: They're abundantly clear. [00:09:16] Speaker 00: I think it's paragraph four of their complaint, that this is a facial challenge. [00:09:20] Speaker 00: And Moody is clear that when analyzing a facial challenge, the question is, do the unconstitutional applications substantially outweigh the constitutional? [00:09:28] Speaker 01: We're looking at- It's true what Moody said in that regard, but if we're just limited to the DPIA, is it your argument that we cannot analyze that portion of this legislation on a facial basis? [00:09:43] Speaker 00: We would say that you can, Your Honor, but there's a whole swath of things in the DPIA that are not at all related to content. [00:09:49] Speaker 00: For instance, harmful contacts could refer to situations where do they allow any adult to message a child online without first having parental permission or without allowing some prior connection. [00:10:01] Speaker 02: So, Counsel, you've certainly argued that the statute is severable. [00:10:07] Speaker 00: Yes, Your Honor. [00:10:08] Speaker 02: Did you argue that a facial challenge is impermissible here other than because there's nothing wrong with the statute? [00:10:22] Speaker 02: Did you did you argue that [00:10:26] Speaker 02: I mean, obviously, you didn't cite Moody in your briefs because it hadn't happened yet, but did you argue that only an applied challenge could work here, that a facial challenge is a non-starter? [00:10:40] Speaker 00: We may not have argued it in those terms, but I think Moody itself is illustrative on this point. [00:10:45] Speaker 00: The parties in Moody were very focused on one application of the statutes, and the court in Moody, and I believe Justice Alito says this quite clearly in his concurrence, the court in Moody nonetheless said that it is the court's duty to apply the proper standard, regardless of perhaps how the parties have framed their arguments. [00:11:01] Speaker 00: And since this is a facial case and has always been, we think that at the very least, [00:11:06] Speaker 00: a reevaluation of this in light of Moody's discussion of how to do a facial challenge is appropriate. [00:11:11] Speaker 04: At what level, there's kind of layers to this statute. [00:11:17] Speaker 04: We've got the DPIA. [00:11:19] Speaker 04: We've got the, I think we've talked a little bit about the subsections of [00:11:24] Speaker 04: 1A, the Romanettes, the content, conduct, other personal information. [00:11:30] Speaker 04: At what level should we be evaluating the facial challenge for purposes of what's at stake that would then lead us into a severability analysis of what's left? [00:11:40] Speaker 00: So I think at the very least, the court needs to look at each specific individual subsection of regulation and whether or not that, how that specific subsection operates. [00:11:49] Speaker 00: We think that's one of the fundamental flaws of the lower court's decision. [00:11:53] Speaker 00: So for instance, the DPA requirement as distinct from the subsections that involve, you know, [00:11:58] Speaker 00: no collecting geolocation data or requirement to have a mechanism to address privacy concerns. [00:12:06] Speaker 00: At the very least, each of those subsections should have been addressed individually as to whether it even regulates speech to begin with and then what is the proper First Amendment challenge for that specific subsection. [00:12:16] Speaker 04: What about the sub-subsections of the DPIA? [00:12:22] Speaker 04: My take on it is it seems like the parties, as well as the district court, have dealt with Section 31, 1B, and all of those eight sub-subsections as a batch. [00:12:37] Speaker 04: Is there anything in the briefing or the record that would allow us to distinguish, for example, between the eight sub-Rominate 8 discussion of personal information or discussion of advertising versus the calling out of content in Rominate 1? [00:12:52] Speaker 00: So we would think that the court is perfectly capable of doing that. [00:12:55] Speaker 00: I believe one of our, it may have been in a footnote notes that that is the sort of granularity that the lower court failed to do with severability analysis. [00:13:02] Speaker 00: Since we have argued that the lower court should have taken a much more nuanced and granular approach to severability and looked at the specific sections that that were unconstitutional vis-a-vis the remainder. [00:13:12] Speaker 04: What's left of the, so the enforcement provision, and this is the discussion in terms of the severability, the enforcement provision [00:13:18] Speaker 04: A condition precedent for enforcement is whether a DPIA is on file. [00:13:27] Speaker 04: What's left if, assuming for purposes of argument, the DPIA requirement is unconstitutional, what's left given that any remaining enforcement is keyed to the DPIA? [00:13:42] Speaker 00: So the DPIA only operates as a notice and cure to the extent that it's been completed. [00:13:46] Speaker 00: So were the court to declare, you know, to enjoin the DPIA requirement, which would, that would enjoin the notice and cure safe harbor, but the remainder of the law would remain enforceable because the rest of the enforcement provisions would still be intact. [00:14:00] Speaker 00: Companies would just lack that safe harbor, notice and cure provision that flows from preparing the DPIA. [00:14:07] Speaker 01: But counsel, [00:14:08] Speaker 01: I'm a Californian. [00:14:09] Speaker 01: My colleagues are not. [00:14:10] Speaker 01: So I followed this as it went along, and it seemed to me that it was very clear that the 90-day safe harbor was a negotiated provision primarily with the industry that had to relent to this. [00:14:23] Speaker 01: It was a safe harbor. [00:14:24] Speaker 01: The idea was to get people to voluntarily cooperate. [00:14:27] Speaker 01: It seemed to me, based on the record, that the 90-day consultation period was indeed a condition precedent to enforcement. [00:14:37] Speaker 01: What's your best argument that that is not the case? [00:14:41] Speaker 00: There's two responses to that, Your Honor. [00:14:42] Speaker 00: The first is that I think if you apply the severability test under California law, that the grammatical, operational, and volitional separability, all three of those criteria are met. [00:14:54] Speaker 00: You can excise it without making the statute unreadable. [00:14:57] Speaker 00: The statute can operate just fine without a 90-day notice and cure, though I'm sure... Well, how can it... Well, let me put it this way. [00:15:04] Speaker 01: Arguendo, if the 90-day provision is a condition precedent that is essential to enforce, which my colleague has been talking about, how can it then be severable? [00:15:15] Speaker 00: So your honor, my second response to this is that this court has broad equitable discretion when it comes to fashioning an injunction. [00:15:22] Speaker 00: And should this court feel that the only way to preserve the remainder of the statute, because we think the legislature would have wanted to keep as much as possible, especially when we're talking about limitations on data use and privacy settings, that was really what the legislature worried a lot about, it can certainly fashion an injunction that retains the 90-day noticing cure, but just severs the DPIA requirement. [00:15:44] Speaker 01: Let me ask you this, if the California legislature, and this is all argument, okay, if the California legislature knew that a court of the Ninth Circuit Court of Appeals was going to knock out the DPIA, would they have gone forward with the rest of the legislation without any report, without any condition precedent to enforcement? [00:16:07] Speaker 00: I think so, and I think that that flows from both the factual findings that we see in the statute itself and from the legislative record, which shows a lot of concern about children's privacy and harm stemming from data use. [00:16:18] Speaker 00: And while the DPIA is part of how the hope was to remedy those, the remaining substantive provisions of the act are also important in helping with that. [00:16:28] Speaker 04: I see I'm running low on time. [00:16:32] Speaker 04: Coming back to something you said, Ms. [00:16:33] Speaker 04: Liska, about how the notice and cure could be saved, how is that even grammatically possible, looking at C1, where the thing that is noticed is if they have complied with the DPIA? [00:16:51] Speaker 04: I just want to be clear that I understand how you see this working in a world without the DPIA. [00:17:00] Speaker 00: I think that the way that you could do it is if you look at the language of C1, which starts with if a business is in substantial compliance, you could just exercise that preparatory clause and start with the attorney general shall provide written notice to the business before initiating an action under this title. [00:17:15] Speaker 02: Thank you. [00:17:16] Speaker 01: I have one. [00:17:17] Speaker 01: Okay, go ahead. [00:17:17] Speaker 02: So, including because of the Supreme Court's ruling, this case has a number of moving parts. [00:17:27] Speaker 02: If we were to [00:17:29] Speaker 02: hypothetically view the DPIA provision or provisions as unconstitutional. [00:17:38] Speaker 02: Does the Attorney General believe there would be any benefit to certifying to the California Supreme Court the severability question? [00:17:47] Speaker 00: That is certainly an option on the table if this court has serious concerns about severability Again, we think the argument is that we make have made clear that the DPA requirement would be severable But you know if this court has deep concerns that is always an option on the table Very well, okay. [00:18:06] Speaker 01: We'll give you a little extra time. [00:18:07] Speaker 01: Thank you your honor all right, so Is it corn revere is that the correct pronunciation please proceed sir? [00:18:14] Speaker ?: I? [00:18:43] Speaker 03: Good morning, Your Honors, and may it please the Court. [00:18:46] Speaker 03: AB 2273 is a speech regulation masquerading as a privacy law. [00:18:54] Speaker 03: The overall thrust of the act is to regulate internet speech, how it is presented, its content, and who is connected. [00:19:03] Speaker 01: Council, before we get too far along in this, as you well know, you have challenged this law facially. [00:19:12] Speaker 01: How does the Supreme Court's recent decision in Moody impact your challenge here, if at all? [00:19:18] Speaker 03: I don't think it impacts our challenge at all. [00:19:20] Speaker 03: As a matter of fact, I think it confirms that facial challenges in the First Amendment context are allowable when a substantial number of the applications of the law are unconstitutional compared to its plainly legitimate sweep. [00:19:34] Speaker 03: And I think that standard is clearly met here. [00:19:36] Speaker 01: Let's say it's arguendo again. [00:19:38] Speaker 01: Certainly. [00:19:39] Speaker 01: If I were to agree with you about the DPIA portion of the law, but not necessarily with respect to the rest of it, [00:19:46] Speaker 01: What would that require us to do? [00:19:49] Speaker 01: Can we basically just attack or deal with that one portion of it and not deal with the other if we felt the district court was incorrect in its facial analysis of the balance of the law? [00:20:02] Speaker 03: Well, I think as Your Honor's questions indicated during my friend's presentation, [00:20:07] Speaker 03: that the law would be very hard to understand or apply if the DPIA provision were knocked out. [00:20:14] Speaker 03: It ties directly to Section 35, which is the enforcement provision, which starts with the predicate in Section 35A that if a entity that is regulated by the act is in substantial compliance with the law, then you get a 90-day grace period. [00:20:34] Speaker 03: That presupposes [00:20:36] Speaker 03: that we know what substantial compliance means, and it requires that substantial compliance in the first place. [00:20:41] Speaker 02: Look, Council, let me address one particular part of the statute, although this is not the limit of my concerns. [00:20:50] Speaker 02: So I don't know if describing it as subsection is correct, but you'll know what I mean. [00:20:57] Speaker 02: Section or subsection 32, establishing a working group. [00:21:02] Speaker 02: The district court enjoined it, which to me is essentially a prior restraint on speech. [00:21:09] Speaker 02: The district court enjoined the speech that is called for in the statute that is individuals making a report to the governor. [00:21:21] Speaker 02: So, how is it that that, for example, setting up a working group wouldn't be severable even if the DPI provisions were declared unconstitutional, even if, as the district court said, well, the working group might be opining on things we've already said are unconstitutional, but why wouldn't, for example, that be severable? [00:21:44] Speaker 03: I think the working group would be several except in a facial challenge, as the Supreme Court said in Patel versus Los Angeles, that you look at in analyzing the overbreath of the statute, the regulatory parts of the statute. [00:21:57] Speaker 03: We don't view the working group as regulatory. [00:22:00] Speaker 03: It's an advisory panel. [00:22:01] Speaker 03: But the judge enjoined it. [00:22:04] Speaker 02: The district judge enjoined the working group. [00:22:08] Speaker 03: Yes, but I don't think that that as a, the fact that there's an advisory group provides a plainly legitimate sweep that would save the overall statute. [00:22:17] Speaker 03: If you look at the working parts, the regulatory- But wouldn't it save the working group part? [00:22:22] Speaker 03: Well, not to the extent that the working group is providing advice on how the law is to be [00:22:27] Speaker 03: implemented and applied. [00:22:30] Speaker 02: So a prior restraint by the federal court barring individuals appointed by the legislature from opining on putting a statute into effect that one or four judges have declared is problematic, that that's not legitimate or severable or couldn't be enforced? [00:22:53] Speaker 03: It could be enforced, but it's not enough to save the statute. [00:22:57] Speaker 03: I think if you look at the parts that regulate speech, you can look at the law in essentially four buckets. [00:23:04] Speaker 03: The first of which you extensively discussed during my friend's time, those are the DPIA requirements. [00:23:10] Speaker 03: I think they are plainly a content-based regulation there, a prior restraint [00:23:15] Speaker 03: as we explained in our papers. [00:23:18] Speaker 03: We agree with the district court, except to the point that the court decided that this was... Following up on my colleague's question, though, and again, it's hypothetical. [00:23:29] Speaker 01: If our court, our UN, know where to find the DPIA is unconstitutional and is not severable, do you even care [00:23:40] Speaker 01: whether we get to the balance of the law on the basis that it is, in fact, not facially challengeable. [00:23:49] Speaker 01: Does it matter to you? [00:23:51] Speaker 03: Well, it does because the other provisions are equally unconstitutional as the prior restraint of the DPIA. [00:23:58] Speaker 03: Look at Section 31A5, the age assurance requirement. [00:24:03] Speaker 03: That requires every website, whether or not they previously had any mechanism for judging the age of its users, to do something in that regard or limit the way it can deliver speed. [00:24:17] Speaker 04: Mr. Corn revere, before you get too much further, I'm eager to hear about the other three buckets which might help us structure our future questions. [00:24:23] Speaker 03: And that is the second bucket. [00:24:24] Speaker 03: The first one is the DPIA requirements. [00:24:26] Speaker 03: The second one is age assurance. [00:24:28] Speaker 03: The third is the policy enforcement provision of section 31A9. [00:24:33] Speaker 03: which essentially deputizes private parties and gives the state oversight ability to determine whether or not they are properly applying their content-based standards. [00:24:43] Speaker 03: And as the evidence in the district court revealed, very subjective standards, editorial standards. [00:24:49] Speaker 03: And then the final are the data use provisions in section 31B1 through seven. [00:24:57] Speaker 03: Those are the ones that restrict how data can be used. [00:25:00] Speaker 01: uh... and uh... as we noted in our papers those also restrict speech as the supreme court uh... holden sorrell versus i want to get back to that again following on what we've all been talking about here why do you want to know would it be a problem for you if the court were to say that the p i a is unconstitutional not several and then because of that the rest of the act is not enforceable either because you can't enforce it [00:25:30] Speaker 01: Well, how about that? [00:25:32] Speaker 01: What's your position on that? [00:25:34] Speaker 03: Well, we take the win. [00:25:35] Speaker 03: But I think there are so many things about this law that are unconstitutional that it's important for the court. [00:25:42] Speaker 01: But if we conclude, particularly in light of Moody, that the balance of the law is not wholly facially challengeable, it would have to be done on an as applied basis and considered section by section, [00:26:00] Speaker 01: That you would have to send back to the district court again. [00:26:04] Speaker 01: Do you agree? [00:26:06] Speaker 03: No, Your Honor. [00:26:07] Speaker 03: And because, first of all, because of the rule established in Patel, that you look at the regulatory portions of the law. [00:26:15] Speaker 03: But beyond that, the question, and it's repeated from the over-breadth analysis in United States versus Hanson, that you look at the extent to which the law [00:26:29] Speaker 03: has unconstitutional applications and then you determine whether or not that is too extensive in relationship to the law's plainly legitimate sweep. [00:26:41] Speaker 03: And so you're looking at how much speech is suppressed [00:26:44] Speaker 03: by the unconstitutional portions compared to other provisions and whether or not that is sufficient to save the law. [00:26:52] Speaker 04: But Mr. Corn revere, I guess this is a very helpful discussion trying to distinguish between severability on the one hand, the facial on the other, and the section by section analysis. [00:27:09] Speaker 04: I read Moody, and correct me where I'm wrong here, to be distinguishing between, and I think I would read Hanson the same way, to be distinguishing between a facial challenge to a single provision. [00:27:24] Speaker 04: I think in Hanson they're looking at the applications [00:27:28] Speaker 04: and there's some contextual work, but they're not actually scrutinizing the other pieces that inform the reading of the statute. [00:27:34] Speaker 04: In Moody, they're also slicing and dicing for purpose of the facial challenge. [00:27:38] Speaker 04: In other words, why isn't the facial challenge to [00:27:43] Speaker 04: this subsection, and that has to be dealt with. [00:27:46] Speaker 04: And then there's a separate facial challenge to is this subsection unconstitutional without a plainly legitimate speech. [00:27:55] Speaker 04: Why wouldn't we do it or require the district court to do it section by section in that way, and then we're left with a severability analysis? [00:28:05] Speaker 03: Well, there are a couple of responses to that, Your Honor. [00:28:11] Speaker 03: The district court, in essence, did go section by section. [00:28:14] Speaker 03: The state had requested briefing on the severability question. [00:28:18] Speaker 03: There was separate briefing on that, and the district court then did go section by section through the act and determine for purposes of the severability analysis whether or not those provisions were constitutional or not. [00:28:34] Speaker 03: Of the ten mandates and eight prohibitions in the law, the court determined that eight of the mandates and five prohibitions violated the First Amendment. [00:28:44] Speaker 04: So there's no legitimate sweep to asking a company to estimate the age of its consumers for purposes of non-content-based safety regulations? [00:28:56] Speaker 03: Well, again, all of these regulations are tied to the contract-based determination of whether or not this is safe. [00:29:04] Speaker 03: As you pointed out in looking at the factors that the court or that the state requires companies to assess when they're determining in their DPIAs. [00:29:13] Speaker 04: Well, I did that with respect to the DPIA. [00:29:15] Speaker 04: I guess, how is the age estimation, for example, tied to the factors in the DPIA? [00:29:26] Speaker 03: Well, again, factors in the DPIA determine what you are looking for and why you impose the age determination. [00:29:33] Speaker 03: And the age determination is being made to determine whether or not it is acceptable to communicate with the user and how that communication can take place. [00:29:44] Speaker 01: That really leaves us, in my judgment, with the same problem the Supreme Court dealt with in Moody. [00:29:49] Speaker 01: Because, as have been pointed out by our questions, there are sections of the non-DPIA [00:29:54] Speaker 01: PIA portion of the statute that, at least in my judgment, cannot be analyzed on a facial basis. [00:30:01] Speaker 01: It requires an as applied analysis. [00:30:03] Speaker 01: The district court did not do that, right? [00:30:06] Speaker 03: Well, the district court didn't follow the formula that Moody [00:30:12] Speaker 03: prescribed, because Moody came after. [00:30:13] Speaker 01: Which is why the Supreme Court sent it back. [00:30:15] Speaker 03: But the law hasn't changed. [00:30:17] Speaker 03: And there's a reason why the court sent it back in Moody, where it would not be appropriate here. [00:30:22] Speaker 03: Keep in mind, in Moody, the court was looking at an analysis from the circuit courts that involved two services for two different online companies. [00:30:33] Speaker 03: Basically, news feed and those kinds of things. [00:30:38] Speaker 03: It did not look at all of the conceivable applications, such as whether or not Uber is coming. [00:30:42] Speaker 02: But Council, respectfully, I think the district court's decision is a little bit different. [00:30:47] Speaker 02: And I'm looking at ER 38, page 37 of the court's decision, given that multiple provisions [00:30:54] Speaker 02: of the CAA DCA will be preliminarily enjoined and the court's determination that these are not functionally severable from the presumably valid remainder of the statute. [00:31:05] Speaker 02: The court concludes that it cannot sever the likely invalid portions from the statute [00:31:10] Speaker 02: and sustain the remainder. [00:31:12] Speaker 02: So the only basis that I see for at least a significant part of the court's ruling is the severability analysis and not doing the type of analysis that the Supreme Court, I think, has commanded in Moody. [00:31:27] Speaker 02: I believe that's what my colleague is saying, but I don't want to put words, obviously, in Judge Smith's mouth. [00:31:32] Speaker 01: You've done an excellent job. [00:31:35] Speaker 03: I would respond in this way, and that is, obviously Moody came after the district court's opinion, so the district court didn't have the benefit of framing [00:31:45] Speaker 03: its analysis in those terms. [00:31:48] Speaker 03: But Moody didn't substantially change what the law is. [00:31:52] Speaker 03: It basically affirmed the analysis enhancement that if there are enough unconstitutional provisions of a law that it can be challenged as overbroad and challenged on its face, and you compare those findings to the plainly illegitimate sweep, the district court's analysis, because it did go provision by provision, [00:32:14] Speaker 03: in analyzing the severability gives this court sufficient information on which to fit the analysis into the mold prescribed by Moody. [00:32:24] Speaker 01: And it is de novo review. [00:32:26] Speaker 01: As we're all saying here, though, as you very well know, in a facial challenge, there can be no circumstance in which any application of the statute is constitutional. [00:32:40] Speaker 01: And as was pointed out, calling with respect to the working group, for example, that probably has no problem at all. [00:32:47] Speaker 01: So if there are portions of the law that clearly don't fall on a facial analysis, what does that do with what we deal with here? [00:32:57] Speaker 01: DPIA may be a separate issue, but with respect to the balance of the statute, [00:33:01] Speaker 01: I don't think the district court applied anything other than a facial analysis, and it seems to be the very kind of thing that the Supreme Court said in Moody was not right. [00:33:11] Speaker 01: It didn't fit in the facial analysis category. [00:33:17] Speaker 03: Well, I would distinguish the facial analysis category in a case like Salerno from a facial analysis in a First Amendment challenge, as in Stevens and in Moody. [00:33:29] Speaker 03: And in that case, you're looking at not just whether or not any provision can survive, but whether or not the unconstitutional provisions as determined by the court outweigh those provisions that could still exist. [00:33:42] Speaker 02: So following up on what I think was one of Judge Johnstone's questions, in doing that analysis where [00:33:49] Speaker 02: where one is putting the good on one side and the not good on the other and seeing if the not good substantially outweighs the good, that your view is we don't look at individual distinct provisions of the statute, that because the California legislature has chosen to put 10 or 15 or 20 different provisions that deal with [00:34:19] Speaker 02: some different things with the same statute or bill number that we look at all of them together and divide them up as opposed to looking at distinct statutory provisions in the bill simply because the legislature chose to stick them all in one legislative enactment? [00:34:42] Speaker 03: Well, no. [00:34:42] Speaker 03: I think you look at the overall [00:34:44] Speaker 03: thrust of what the bill regulates and then determine whether or not the unconstitutional portions outweigh that which is constitutional. [00:34:52] Speaker 02: But you don't think in doing that we should analyze what we consider to be separate type provisions separately [00:35:02] Speaker 02: and look at provision 29 and say, we need to do a separate facial challenge analysis of 29, because yeah, it's got some unconstitutional stuff, but there's plenty of section 29 that could be, that there are circumstances where that works, and so a facial challenge doesn't work. [00:35:22] Speaker 02: You're saying we have to do one through 29 together, we can't look at seven separately from 29 in making our numerical sorting. [00:35:30] Speaker 03: Well, no, I mean, you can go either way. [00:35:32] Speaker 03: You can look at the statute as a whole and determine how much speech it regulates. [00:35:35] Speaker 03: And in this case, the answer is a vast amount of speech. [00:35:38] Speaker 04: But why doesn't that confuse it with a severability analysis? [00:35:41] Speaker 04: That sounds like a question for severability, not a question for a facial challenge as to each of the law's provisions. [00:35:47] Speaker 03: Well, I mean, I think they are interrelated in that if you're doing a severability analysis, you are making a judgment about each of the law's provisions and determining its constitutionality. [00:35:57] Speaker 03: At the end of that, if you determine that the overall impact of the law is to regulate a substantial amount of regulated speech compared to its plainly legitimate sweep, [00:36:10] Speaker 03: then at that point you make the judgment on a facial basis that it is unconstitutional. [00:36:14] Speaker 04: Just to take another example, you don't challenge at least some of the geolocation provisions. [00:36:20] Speaker 03: That's right. [00:36:20] Speaker 03: There were four provisions in Section 31B we did not challenge. [00:36:24] Speaker 04: Okay. [00:36:25] Speaker 04: This matters because the First Amendment is federal law. [00:36:29] Speaker 04: The severability question is state law. [00:36:31] Speaker 04: I think it's pretty important that we keep those two separate within our jurisdiction. [00:36:35] Speaker 04: So that's not even challenged. [00:36:40] Speaker 04: So you're saying that simply by virtue, as Judge Bennett says, of the fact that the legislature has decided to compound these, subject to, under state law, its own severability analysis, the unchallenged geolocation of children protections in the bill fail simply because it was enacted alongside the more suspect DPIA. [00:37:03] Speaker 03: And therein lies the problem. [00:37:05] Speaker 04: as a matter of First Amendment law, not severability law. [00:37:07] Speaker 03: Right. [00:37:08] Speaker 03: If having any unchallenged or any constitutional provisions are enough to immunize a law from over-breadth challenge, then you've simply made over-breadth anachronistic doctrine that it simply can't be applied. [00:37:23] Speaker 01: I gather what you're saying is that even if [00:37:27] Speaker 01: the district court failed in, well, in the way he had applied a facial challenge to the balance of the law, not the DPIA portion, it's okay to consider it for purposes of severability, but if not for purposes of first amendment analysis. [00:37:45] Speaker 01: Is that correct? [00:37:46] Speaker 03: I'm not sure I understand your question. [00:37:47] Speaker 01: In other words, the district court, let's go back, if the DPIA is, in quotes, unconstitutional, [00:37:54] Speaker 01: In order for us to determine, if we did, that it is not severable, can we look at the balance of the act, even if we think the district court could not analyze it facially, can we look at the balance of it and say, under California law, this isn't severable? [00:38:12] Speaker 01: Can we do that? [00:38:15] Speaker 03: Yes, absolutely. [00:38:16] Speaker 03: I mean, you can. [00:38:17] Speaker 03: Is that what the district court in effect did? [00:38:19] Speaker 03: And the district court did determine that that portion was not severable because it was interrelated. [00:38:24] Speaker 03: with the rest of the way the law operated. [00:38:27] Speaker 03: Let me just add this, and that is if the court is inclined to have doubts about whether or not this is subject to a facial over-breadth challenge, I would request the opportunity for additional briefings since Moody did come after the district court's decision. [00:38:42] Speaker 03: I would ask also that if there is any further consideration or even a remand that the injunction remain in place because what the state has never contested or the [00:38:54] Speaker 03: factors involved in granting preliminary injunctive relief and that is irreparable harm and likelihood of success Those your time is up if you want additional briefing. [00:39:05] Speaker 01: We will certainly let you know But thank you very much for your argument So the state has some rebuttal time and we're gonna give you an extra minute because we took you over So and I know you want that minute, right? [00:39:17] Speaker 00: Appreciate that [00:39:20] Speaker 00: I think I'd like to sort of pick up on sort of where the discussion with my friend on the other side was going, which is that when you look at this law into a facial challenge, we would contend you need to do a facial analysis of each separate subsection and that that was really what the lower court failed to do. [00:39:39] Speaker 00: The question, and Moody sort of makes clear, is not sort of what is the overall thrust of the law. [00:39:43] Speaker 00: I mean, if you look at the language in Moody, [00:39:46] Speaker 00: It says a court needs to look at quote what activities by what actors do the laws prohibit or otherwise regulate and drill down into this full set of applications. [00:39:54] Speaker 00: So we think that really in a law this complex that necessitates looking at each separate provision because and what the lower court did is it just sort of grouped them together and said speech is involved. [00:40:06] Speaker 00: But if you look and sort of disentangle these, that's not necessarily the case. [00:40:10] Speaker 00: And different constitutional tests may apply to different provisions. [00:40:14] Speaker 00: Compelled speech, for instance. [00:40:16] Speaker 00: We argue that if you look at the provision about enforcing terms and services, that's not a first amendment problem under cases like Cohen that relate to private agreements. [00:40:24] Speaker 00: Parts like age estimation. [00:40:25] Speaker 01: Let me ask you what I ask your colleague, because it's important to me. [00:40:31] Speaker 01: The district court [00:40:32] Speaker 01: in its severability analysis, again a state law question, look at the entirety of the bill. [00:40:39] Speaker 01: For purposes of analyzing what we do with this injunction, can we, arguing though, if we said the DPIA is unconstitutional, even if we disagree with the way the district court analyzed the balance of the bill for purposes of First Amendment law, can we interpret it in [00:40:59] Speaker 01: determining whether this DPIA section is severable, can we analyze it based on the district court's review of the impact of the balance of the legislation? [00:41:13] Speaker 00: I think that, yes, I want to see that I sort of track the way that you're viewing this. [00:41:19] Speaker 00: I think the way to view severability is if you were to take like an entire piece of paper and you were to carve out a hole from the middle, which is the part that you view as unconstitutional, [00:41:28] Speaker 00: can the rest of the piece of paper stand? [00:41:30] Speaker 00: So you do have to look at the remainder of the law with respect to if I pull out that part that is unconstitutional, does the remainder collapse like a house of cards, or is it sturdy enough to stand? [00:41:41] Speaker 00: I guess maybe a Jenga tower is a more apt metaphor. [00:41:44] Speaker 00: Is it like a Jenga tower where I pulled out a block and the rest of the tower stands very well? [00:41:48] Speaker 00: And that's the three-prong analysis in the California law. [00:41:52] Speaker 00: Is it grammatically separable, operationally separable, in that the rest of the law can function without the piece? [00:41:58] Speaker 00: And is it volitionally separable, which we note in our... [00:42:02] Speaker 00: And our reply brief asks, would the legislature have preferred the remainder of the law to nothing? [00:42:07] Speaker 00: Not would it have preferred everything it could have gotten versus the part taken out, but would it have preferred to keep everything it could keep constitutionally to having nothing in place? [00:42:18] Speaker 00: So we do think you have to look at the entire law to do the severability analysis, but it starts from what is the specific provision that's unconstitutional, and we think the district court's error was not drilling down at each subdivision to determine that, especially under Moody. [00:42:32] Speaker 00: I see my time's up. [00:42:33] Speaker 00: Thank you, Your Honor. [00:42:35] Speaker 01: I'm sure we could talk about this for a really, really long time, but we're not going to, but thanks for your learned argument. [00:42:42] Speaker 01: We appreciate it very much. [00:42:43] Speaker 01: The case just argued is submitted.