[00:00:00] Speaker 01:
Good morning, Your Honors, and may it please the Court.

[00:00:04] Speaker 01:
Gregory Keenan, appearing on behalf of Appellants, the estate of Bella Herndon at all.

[00:00:11] Speaker 01:
I'd like for five minutes, if I may.

[00:00:13] Speaker 03:
Just keep an eye on the clock.

[00:00:15] Speaker 01:
Thank you, Your Honor.

[00:00:17] Speaker 01:
This case involves defendants' use of its algorithms to expose a child to foreseeable harms so as to torturously cause the death of Bella Herndon.

[00:00:28] Speaker 01:
Algorithmic control is a central fact here.

[00:00:32] Speaker 01:
Legally, algorithmic control provides important distinguishing features from prior case law.

[00:00:40] Speaker 01:
Likewise, algorithmic control provides key limiting principles.

[00:00:44] Speaker 01:
And allegations of algorithmic control permeate the complaint.

[00:00:49] Speaker 01:
Indeed, by now it's an open secret that algorithms are harming our nation's children when used in negligent and reckless fashions.

[00:00:56] Speaker 01:
Courts have begun recognizing the real world's harms.

[00:01:00] Speaker 01:
Scholars have recognized that algorithmic targeting inflicts real harm and can even cost lives, as in this case.

[00:01:06] Speaker 01:
And the California state legislature, in recent legislation, asked whether algorithms are harming children.

[00:01:14] Speaker 03:
So before we get to the algorithm issue, I mean, the basis for the district court's decision was the statute of limitations and status as someone who could bring a wrongful death claim.

[00:01:28] Speaker 03:
So maybe you could start with the statute of limitations question.

[00:01:32] Speaker 01:
Sure.

[00:01:33] Speaker 01:
Of course, Your Honor, happy to do so.

[00:01:35] Speaker 01:
So that's right.

[00:01:36] Speaker 01:
The district court below dismissed for two procedural reasons, one of which was the threshold question of whether or not the survival claims were time-barred.

[00:01:50] Speaker 01:
Here we think that this plain reading of the text and the whole text canon interpretation makes plain that the claims were timely.

[00:02:00] Speaker 01:
The statute, the operative statute, which

[00:02:03] Speaker 01:
was not cited below 366.1, asks us to determine the applicable limitations period had Bella not died.

[00:02:14] Speaker 01:
Here, a girl had died before the expiration of the applicable limitations period, so section 366.1 was invoked.

[00:02:25] Speaker 01:
We then have to determine by operation of statute

[00:02:29] Speaker 01:
the time period, the limitations period that would have been applicable if the person had not died, so as to determine whether section 366.1A or section 366.1B is the longer of the two times.

[00:02:43] Speaker 03:
Right, and the limitations period under 335.1 is two years, right, but you want to say that when it refers to limitations period it doesn't really mean

[00:02:54] Speaker 03:
Limitations period itself.

[00:02:55] Speaker 03:
It means the limitations period plus tolling that would have been available, right?

[00:03:02] Speaker 01:
Well most directly I think the statute by its plain language as us just answer the counterfactual question of What it would have been had she not died.

[00:03:10] Speaker 01:
So had she not died, of course Minor tolling would have applied in that instance But when but why I mean

[00:03:20] Speaker 03:
Well, I guess a couple of questions on that.

[00:03:22] Speaker 03:
But first, just as a textual matter, it says that requires us to read limitations period as limitations period plus any applicable tolling, right?

[00:03:35] Speaker 03:
Because if we just look at the limitations period that would have been applicable, that's 335.1, isn't it?

[00:03:40] Speaker 01:
Yes, Your Honor, but as a matter of California law and the way the statute is structured, tolling is a default.

[00:03:48] Speaker 01:
So when we read limitations period, we're reading the tolling periods, the applicable tolling periods into it, unless they're excluded by statute.

[00:03:58] Speaker 01:
So if I could quote, for example, in Vandel v. Teague,

[00:04:03] Speaker 01:
The court said, the statute of limitations is a general statute and must be applied generally and in all cases where exceptions to its operations are not specifically made.

[00:04:14] Speaker 01:
And going further back in Blindstein v. Superior Court, speaking about the minor tolling statute in particular, the Court of Appeals of California said that the statutes contained in Chapter 4 are extremely general and it is clear that they are intended to govern the application of all the specific limitations periods contained in Chapter 3.

[00:04:34] Speaker 01:
And that's flight scene at 162 Cal App 3D 152 at page 157 footnote 4.

[00:04:44] Speaker 01:
So our argument would be that when you look at the statute as a whole, when it's referring to limitations period, the default rule is to read any applicable tolling in unless it's excluded.

[00:04:57] Speaker 02:
What would you do for like an intellectual disability?

[00:05:01] Speaker 02:
You know, somebody has an intellectual disability and then

[00:05:04] Speaker 02:
passes away, you know, unlike in the age thing, you don't have like the day they would have turned a certain age.

[00:05:12] Speaker 02:
So it just, you know, do we do our best guess or does that not apply to intellectual disability?

[00:05:16] Speaker 02:
What do you do in that instance?

[00:05:18] Speaker 01:
Of course, Your Honor.

[00:05:19] Speaker 01:
So in that case, the argument was made or suggested that perhaps that would render our

[00:05:27] Speaker 01:
reading somewhat problematic or even absurd.

[00:05:30] Speaker 01:
I think it's important to note that the California courts have acknowledged in certain situations that even infinite time periods would not be absurd, that it's a matter for the California legislature to decide, you know, how much time to permit.

[00:05:48] Speaker 02:
And also that the... We just go on, I mean, even putting aside absurd or whatever, just

[00:05:56] Speaker 02:
It's just not, like, would it go on forever or would it, you know, I don't know, like, what would it do in that circumstance?

[00:06:04] Speaker 01:
Sure.

[00:06:05] Speaker 01:
Of course, the plaintiff would have to prove that the disability was permanent as opposed to temporary, because if the disability stopped, if it was a temporary disability, of course, it would continue.

[00:06:17] Speaker 02:
Yeah.

[00:06:17] Speaker 02:
So you have a whole fact-finding about, and experts about witness persons.

[00:06:23] Speaker 02:
disability may or may not have ended, and then you tack on.

[00:06:27] Speaker 02:
It seems challenging.

[00:06:29] Speaker 01:
Certainly challenging, and I understand the concern.

[00:06:34] Speaker 01:
Of course, here it was a matter of two years.

[00:06:38] Speaker 01:
I do understand the concern about disabilities and the potential for it to go longer.

[00:06:42] Speaker 01:
But it's important to note that throughout the various sections surrounding the operative statute, there are express kind of

[00:06:51] Speaker 01:
camps put on the end of periods, so for example, saying, you know, stops after 20 years in the case of minor tolling and disability tolling for real estate, there's a... So doesn't your interpretation

[00:07:05] Speaker 04:
cause at least some tension with the triplet decision where the person had a disability and then died and the disability was the court concluded that the disability ended with the person's death and that was a person with an intellectual disability so the hypothetical that Judge Van Dyke just posed to you it doesn't go on indefinitely the disability ends when the person dies so

[00:07:31] Speaker 04:
If that is California law, and I believe it is, then when Mr. Arndon died in this case, the disability of her minority ended because then her estate becomes the entity that can bring the claim.

[00:07:49] Speaker 01:
So two responses to that, Your Honor.

[00:07:52] Speaker 01:
The first is that if you look at the triplet decision, while the court did note that the death ended

[00:07:58] Speaker 01:
um, disability tolling, um, neither, uh, the statute of the survival limitations statute wasn't in place.

[00:08:08] Speaker 01:
So neither the current one or its predecessor section 353.

[00:08:12] Speaker 01:
So what triplet would show you is what would happen in the absence of a,

[00:08:16] Speaker 01:
Survival limitation statutes.

[00:08:18] Speaker 04:
Okay, so the statute was amended I think in 1992 and there was a Commission who said this was not intended to make any substantive changes to the law So it seems that whatever the law in California has been it has been the same for a very long period of time and there wasn't a change with with

[00:08:38] Speaker 04:
the amendment to the statute.

[00:08:40] Speaker 04:
So that brings me to the question we issued in the focus order.

[00:08:45] Speaker 04:
Are you asserting that the term limitations period in the statute is ambiguous and so we need to resort to candidates of statutory construction, the structure of this section of the statutes, what other statutes say, trying to put this language into context, or do you think it's unambiguous and applying the plain language it means

[00:09:07] Speaker 04:
Limitations period includes any tolling?

[00:09:11] Speaker 01:
We think our initial position would be that it is unambiguous.

[00:09:17] Speaker 01:
Limitations period is interpreted to include by default.

[00:09:22] Speaker 01:
Where?

[00:09:23] Speaker 04:
What's the basis of your interpretation of limitations period to include tolling?

[00:09:27] Speaker 04:
Is there a California case or a treatise or something else you're relying on?

[00:09:31] Speaker 01:
Sure, it would just be looking at the structure of the various provisions.

[00:09:37] Speaker 04:
Okay, so it's not the plain language, the words limitations period.

[00:09:41] Speaker 04:
It's an exercise in statutory interpretation because we're looking at the way the statute is structured.

[00:09:48] Speaker 01:
Our position would be that the plain meaning of any statutory provision would be interpreted via the whole text canon so that one can't really, according to

[00:09:58] Speaker 01:
proper statutory interpretation, just look at a statute in isolation or a word in isolation, be able to discern the plain meaning.

[00:10:04] Speaker 01:
I think both the Supreme Court, the federal courts and the California courts have acknowledged that principle of interpretation.

[00:10:11] Speaker 01:
I'd also just like to

[00:10:13] Speaker 04:
But isn't there, if we apply your method, isn't there a structural problem as well in that the statute refers to a particular part of the code?

[00:10:23] Speaker 04:
I think it's Title III, I'm not remembering the number correctly, and this provision is not located there.

[00:10:29] Speaker 04:
So that seems to be a structural problem for your argument, but you may have a response I haven't thought of.

[00:10:34] Speaker 01:
Just in terms of that it wasn't meant to deviate from prior law,

[00:10:39] Speaker 01:
I just wanted to note that going back to 1875, the California Supreme Court has been said the following about the survival limitations, saying that the action to compel the specific performance of the agreement mentioned in the complaint was brought, quote, within the period for its commencement against Whipple had he lived.

[00:11:01] Speaker 01:
And then later saying that this predecessor statute, which isn't supposed to reflect any changes, section 353,

[00:11:10] Speaker 01:
cannot operate in any case to shorten the time period that's reflected in the current language, we would say, with the command that we're supposed to interpret what would happen had the person not died.

[00:11:22] Speaker 01:
And why?

[00:11:23] Speaker 03:
I mean, if the legislature wrote the statute this way, what conceivable reason could there have been for it?

[00:11:31] Speaker 03:
I mean, because a tolling provision makes a certain sense, that the statute shouldn't run out while the person who would be bringing the action is incapable of bringing an action.

[00:11:40] Speaker 03:
But here, the person who would be bringing the action is the survivor, and the survivor is perfectly capable of suing.

[00:11:46] Speaker 03:
So why have extra tolling?

[00:11:49] Speaker 01:
Of course.

[00:11:50] Speaker 01:
So if there is a need to resort to policy or ambiguity, we would contest that it's the policy reasons of the survival limitations itself, which is, of course, the purposes for the claim to survive.

[00:12:07] Speaker 01:
So it's technically Bella's claim.

[00:12:09] Speaker 01:
I understand that by looking at the policy of the minor tolling provision in isolation, the argument was made that, well, we don't need to toll it.

[00:12:18] Speaker 01:
The adult now has it.

[00:12:19] Speaker 01:
But it is Bella's claim.

[00:12:20] Speaker 01:
And the point, the fundamental point going back to the creation of these statutory provisions of survival was to actually stop the common law

[00:12:30] Speaker 01:
abatement

[00:12:43] Speaker 01:
It's not meant, these statutes of limitation, these limitations periods are not meant to, the survival limitations periods were never meant to operate to shorten the time to sue or to reduce the time.

[00:12:52] Speaker 04:
So the statute allows an additional six months.

[00:12:56] Speaker 04:
So the statutes and the alternative for the time that would have been allowed had the person survived or an additional six months after their death.

[00:13:03] Speaker 04:
So it does provide some saving, some extension of time, which would, I think, satisfy the policy reason that you're explaining.

[00:13:11] Speaker 04:
uh... well that would actually there are other there are other countervailing policy considerations of course with statutes of limitations finality stale evidence all those sorts of things why why states adopt statutes of limitations so we have conflicting policy concerns and it seems that california uh... legislature decided to resolve that by saying you have at least a period of time you had but the person was alive and then if that's running out you get an additional six months

[00:13:36] Speaker 01:
But of course, one, the statute commands the longer of the two.

[00:13:39] Speaker 01:
So it would also render the B sub-provision.

[00:13:48] Speaker 04:
But that goes back to your earlier argument that it has to include tolling.

[00:13:51] Speaker 04:
So the statutory period was two years, but it was tolled because of miscellaneous minority.

[00:13:58] Speaker 04:
If the tolling period isn't included, then the limitations period is two years.

[00:14:02] Speaker 01:
But of course, there's just nothing, there's no statutory provision that the other side has ever identified that says that the minor tolling would die or that we shouldn't calculate it or that we would not include it here.

[00:14:16] Speaker 01:
So by contrast, the prenatal survival limitation spirit

[00:14:21] Speaker 01:
It actually tells you to expressly exclude minor tolling.

[00:14:25] Speaker 01:
So in other provisions where the legislature wanted to say not to include minor tolling in the calculations, they just come out and say it.

[00:14:32] Speaker 01:
Our suggestion would be there's a complete absence of any such indication in any of the operative statutes here.

[00:14:37] Speaker 01:
And even in the cases, for example, there's an emancipation case that the other side cites.

[00:14:44] Speaker 01:
where they said that, well, when a minor is emancipated, they no longer have minor tolling.

[00:14:47] Speaker 01:
But they didn't just reason that in the abstract.

[00:14:50] Speaker 01:
Looking at 353, the court took pains in that case to actually identify the statutory provisions of the Emancipation Act that told you that you were supposed to end minor tolling.

[00:15:00] Speaker 01:
So our argument is that the term, applicable limitations period, should always by default, and that's how it's used consistently throughout the code,

[00:15:09] Speaker 01:
includes tolling, and if a tolling provision is meant not to apply, the legislature just says so.

[00:15:18] Speaker 03:
You wanted to reserve some time?

[00:15:20] Speaker 03:
Thank you very much.

[00:15:21] Speaker 03:
You may.

[00:15:28] Speaker 03:
Ms.

[00:15:28] Speaker 03:
Young.

[00:15:29] Speaker 00:
Good morning, Your Honors.

[00:15:31] Speaker 00:
May it please the Court, Blanca Young for Defendant Napoli, Netflix.

[00:15:36] Speaker 00:
The judgment of the district court should be affirmed for three independent reasons.

[00:15:40] Speaker 00:
We were just talking about one of them, the procedural reasons why the complaint fails.

[00:15:44] Speaker 00:
In addition to that, the plaintiffs have not stated a claim as a matter of California tort law.

[00:15:49] Speaker 00:
And third, if they had, the First Amendment would bar these claims.

[00:15:52] Speaker 00:
They want to focus on the procedural issues to start because they are case dispositive.

[00:15:57] Speaker 00:
And the court was just talking with my friend about the survival claim.

[00:16:01] Speaker 00:
There's also a wrongful death claim.

[00:16:03] Speaker 00:
They fail for different procedural reasons.

[00:16:06] Speaker 00:
The survival action is time barred, and to answer the court's question in the focus order, the language, the period of limitations in 366.1 is unambiguous, but even if it were ambiguous, there is only one reasonable construction, and that is that it refers to the period of limitations for the cause of action that has survived the death of the decedent.

[00:16:31] Speaker 00:
Um, and we know that because, um, the code of civil procedure uses the phrase period of limitations in a very specific way.

[00:16:40] Speaker 00:
Um, chapter three of title two of the code of civil procedure is titled periods of limitations.

[00:16:46] Speaker 00:
And then it lists different causes of action.

[00:16:49] Speaker 00:
And for each of those, it defines the period of limitations within which someone needs to bring that particular cause of action.

[00:16:56] Speaker 00:
Here, the relevant one is 335.1.

[00:17:00] Speaker 00:
That's the limitations period for personal injury claims.

[00:17:05] Speaker 00:
It is two years.

[00:17:06] Speaker 00:
And it is always two years.

[00:17:08] Speaker 00:
Separately, the code of sale procedure sets forth tolling rules.

[00:17:13] Speaker 00:
That's in chapter four, and that is where we find the disability tolling provision in section 352.

[00:17:19] Speaker 00:
And those rules tell you when that limitations period starts.

[00:17:24] Speaker 00:
They don't tell you what the limitations period is.

[00:17:27] Speaker 00:
The limitations period is always two years for these types of claims.

[00:17:31] Speaker 00:
It just might be delayed for a period of time if someone has a disability.

[00:17:36] Speaker 00:
That interpretation must be the correct one.

[00:17:40] Speaker 00:
Otherwise, the legislature would have just abrogated decades of precedent under triplet, as Your Honor mentioned, sub salentio.

[00:17:48] Speaker 00:
And there's no indication that the legislature intended to do that.

[00:17:52] Speaker 00:
To the contrary, the legislature said they were making these wording changes in the 1992 amendments without substantive change.

[00:18:01] Speaker 00:
I also wanted to point out in that very same law revision comment in the 1992 amendments, the Law Revision Commission tells us what it thinks the limitations period means.

[00:18:13] Speaker 00:
It says, quote, that Section 366.1 restates part of the former Section 353 without substantive change.

[00:18:23] Speaker 00:
This section makes clear

[00:18:24] Speaker 00:
that the decedent's death does not shorten the limitations period applicable to the decedent's cause of action, but may extend it for up to six months.

[00:18:33] Speaker 00:
So the Law Revision Commission, like us, reads this statute to mean that when it refers to the limitations period, it's talking about the period, quote, applicable to the decedent's cause of action.

[00:18:45] Speaker 00:
And to interpret this any other way would lead to totally absurd results.

[00:18:49] Speaker 00:
And your honor was talking about the case of someone who is under a mental incapacity.

[00:18:55] Speaker 00:
If we were to read the statute the way plaintiffs are urging, that would mean that we would have to engage in this counterfactual exercise any time someone has died who is under some sort of mental incapacity and just guess at whether the mental incapacity would have ever lifted and when that would have happened.

[00:19:13] Speaker 00:
There's no indication that the legislature intended us to engage in that kind of inquiry.

[00:19:21] Speaker 00:
The only other thing I want to respond to from my friend's argument earlier is he said that there's a policy that this survival limitations period cannot operate to shorten the limitations period that would otherwise apply.

[00:19:37] Speaker 00:
It doesn't.

[00:19:38] Speaker 00:
The period is always two years.

[00:19:41] Speaker 00:
And when Ms.

[00:19:41] Speaker 00:
Herden died, her estate, which had to have somebody who was over the age of majority and legally competent

[00:19:50] Speaker 00:
had two years to bring the claim that period was not shortened.

[00:20:08] Speaker 00:
around the country and there's no indication that the legislature intended to abrogate that law.

[00:20:15] Speaker 00:
Unless the court has other questions on the survival claim, I want to now turn to the wrongful death claims.

[00:20:22] Speaker 00:
Those are brought by the decedent's brothers.

[00:20:25] Speaker 00:
And they do not have standing under Section 377.60 of the Code of Civil Procedure to bring these claims.

[00:20:35] Speaker 00:
A wrongful death action is a creature of statute.

[00:20:38] Speaker 00:
You must have standing under the statute in order to pursue that claim.

[00:20:42] Speaker 00:
The statute is specific about who has standing to do that.

[00:20:46] Speaker 00:
Only the surviving spouse, domestic partner, children, and issue of deceased children can bring the claim, or if there are no surviving issue,

[00:20:54] Speaker 00:
quote, the persons including the surviving spouse or domestic partner who would be entitled to the property of the decedent by intestate succession.

[00:21:03] Speaker 00:
The siblings here don't fall into any of the enumerated categories.

[00:21:07] Speaker 00:
They are instead relying on the latter part of the statute, which requires you to be entitled to the property of the decedent by intestate succession.

[00:21:16] Speaker 00:
They simply are not, because the decedent here has a surviving father.

[00:21:21] Speaker 00:
Under the laws of intestate succession, he stands in line

[00:21:24] Speaker 00:
in front of the siblings, and so they are not entitled to the property of the decedent by intestate succession.

[00:21:30] Speaker 00:
Every Court of Appeal in California to address this issue has so held.

[00:21:36] Speaker 04:
I'm referring... So how do you respond to the plaintiff's argument that Redfield alters what you're now arguing because California Supreme Court, in their reading of Redfield, applied common law principles to determine who had standing to bring a claim?

[00:21:52] Speaker 00:
I think the reading of Redfield is just incorrect.

[00:21:56] Speaker 00:
Subsection, and I think it relies on Subsection E of Section 377.60, which said that nothing in the statute is intended to alter the standing of people who had it under prior law.

[00:22:08] Speaker 00:
The prior law they cite, as Your Honor points out, is Redfield.

[00:22:11] Speaker 00:
The Redfield holding is very narrow.

[00:22:13] Speaker 00:
It does not stand, as the plaintiffs argue, for

[00:22:16] Speaker 00:
the proposition that anyone, anywhere in the line of succession ad infinitum has standing.

[00:22:22] Speaker 00:
What Redfield simply held was that when the property in the estate is only community property, that doesn't disqualify heirs with immediate standing who would otherwise receive separate property from having standing under the wrongful death statute.

[00:22:38] Speaker 00:
So all Redfield says is that the character of the property in the estate doesn't dictate who has standing, but it did not change

[00:22:45] Speaker 00:
the rules of intestate succession that look to who is first in line.

[00:22:50] Speaker 00:
And to be a little bit more concrete about the holding of Redfield, in that case you had a woman who died and she had a surviving husband and surviving children.

[00:22:59] Speaker 00:
She only had community property in the estate.

[00:23:02] Speaker 00:
Under the rules of intestate succession, the husband gets 100% of the community property, the children don't take anything.

[00:23:10] Speaker 00:
If she had had separate property in the estate,

[00:23:13] Speaker 00:
A third of that would have gone to the husband.

[00:23:15] Speaker 00:
Two thirds would have gone to the children.

[00:23:16] Speaker 00:
And all the Supreme Court said in Redfield was that doesn't disqualify the children from having wrongful death standing because they still are first in line and they would have succeeded to that property had there been some in the estate, which is that rule was recognized in Fisk.

[00:23:34] Speaker 00:
It was codified in the 1992 amendments, which is why the statute uses this would have language.

[00:23:41] Speaker 00:
But that doesn't mean that everybody in the line of succession has standing.

[00:23:45] Speaker 00:
It just means that the immediate heirs do.

[00:23:47] Speaker 00:
Unless the court has further questions about the procedural issues, I now want to turn to the substantive claims and make sure I answer the question in the court's focus order about the Wyrum case.

[00:23:59] Speaker 00:
And the question there was, does that case have any relevance here or does it control?

[00:24:03] Speaker 00:
The answer is that it does not.

[00:24:06] Speaker 00:
Wiram has some broad language in it, but was very clear that duty is something that courts evaluate on a case-by-case basis.

[00:24:16] Speaker 00:
And the facts of Wiram are completely distinguishable from the facts here.

[00:24:20] Speaker 00:
I think what Wiram stands for

[00:24:22] Speaker 00:
is the proposition that if you actively encourage someone to engage in inherently dangerous conduct, then you cannot escape liability.

[00:24:32] Speaker 04:
But in one room, the California Supreme Court didn't really engage in any sort of First Amendment analysis and then get to what sounds like you're suggesting a Brandenburg analysis of incitement.

[00:24:42] Speaker 04:
It just isn't there.

[00:24:44] Speaker 04:
It seemed that the California Supreme Court just concluded there was a duty under these facts where they're, you know, racing through the street to identify the dysjockey and an accident occurs.

[00:24:54] Speaker 04:
It seems very difficult to reconcile with subsequent California Court of Appeal decisions, which Bill is one of them, Olivia, where the court looked at policy implications with the First Amendment.

[00:25:09] Speaker 00:
I think McCollum actually makes the point in distinguishing Wiram that the facts of Wiram are a specie of incitement and that the logic of the Wiram decision acknowledges that.

[00:25:24] Speaker 00:
The only speech at issue in Wiram was a radio broadcast where people were literally being encouraged to speed around the streets of Los Angeles and be the first to arrive at the location of a DJ to win a cash prize.

[00:25:37] Speaker 00:
and the court there held that that is effectively inciting conduct that is inherently dangerous speeding around the streets here and and this is also the basis on which

[00:25:51] Speaker 00:
McCollum and Olivia N. and Bill Distinguished Wyrom.

[00:25:55] Speaker 00:
We are dealing with an allegation not that conduct someone was encouraged to engage in was inherently harmful, but that the speech they were encouraged to view was inherently harmful.

[00:26:07] Speaker 00:
And there we run head first into First Amendment concerns.

[00:26:11] Speaker 00:
And when we do that, it's those other decisions in the California Courts of Appeal that supply the rule of decision, which is, in particular, when analyzing the duty question, McCollum said we have to look at whether this rises to the level of incitement, and if it does not, then there is too much of a cost on speech to impose liability.

[00:26:35] Speaker 00:
And a straightforward application of the Brandenburg test here shows that it simply cannot be met.

[00:26:42] Speaker 00:
It's not met under

[00:26:44] Speaker 00:
the allegations uh... in the complaint and it could not be met there's absolutely nothing in the complaint or could there be to suggest that netflix intended anyone to harm themselves uh... but isn't there uh... evidence that netflix consulted with mental health experts who warned them that airing this program could result in

[00:27:09] Speaker 04:
children committing suicide.

[00:27:11] Speaker 04:
So they were aware of this danger and chose to broadcast the show in any event.

[00:27:18] Speaker 00:
That is the allegation in the complaint, Your Honor.

[00:27:21] Speaker 00:
That is also the allegation in virtually every one of these cases where the courts nonetheless have rejected liability.

[00:27:30] Speaker 00:
I think Olivia N. in particular involved very similar allegations

[00:27:34] Speaker 00:
that NBC, which broadcast a show about a rape, was aware of studies saying that depictions of violence could cause people to react violently and imitate those things.

[00:27:47] Speaker 00:
And nonetheless, the court found that First Amendment concerns

[00:27:51] Speaker 00:
outweighed all of that and precluded liability.

[00:27:54] Speaker 00:
Similarly in the McCollum case, there were allegations that Ozzy Osbourne and his producers knew that their music was particularly attractive to people who were

[00:28:07] Speaker 00:
despondent and suicidal, and yet for profit went ahead and marketed that music to those people causing the decedent to commit suicide.

[00:28:18] Speaker 00:
So this foreseeability, and the California courts are very clear on this, it is an aspect of duty, it is not synonymous with duty.

[00:28:27] Speaker 00:
I think Nally is the California Supreme Court case that makes that point, but what is required is not just foreseeability because this is,

[00:28:37] Speaker 00:
par for the course in these cases that foreseeability is alleged.

[00:28:41] Speaker 00:
You have to balance that against the First Amendment concerns and free speech concerns, which are extremely palpable here because they're, and I think the gist of these cases is that you're always, when you're dealing with content that is violent in nature or may engage with themes about suicide or substance abuse or anything like that,

[00:29:05] Speaker 00:
That kind of content may foreseeably be attractive to some segment of the population who may get ideas in their head to do things that are harmful to themselves or others.

[00:29:15] Speaker 00:
And the solution to that is not to stifle the speech.

[00:29:21] Speaker 00:
There's a very high standard if there is an intent that someone commit harm and then active

[00:29:28] Speaker 00:
encouragement for them to do that with the likelihood that that will be the immediate result, then you can impose liability.

[00:29:35] Speaker 00:
But the law is purposely very constrained in this area because of the free speech concerns.

[00:29:42] Speaker 00:
Unless the panel has other questions, I will submit on the papers.

[00:29:46] Speaker 03:
It appears we do not.

[00:29:47] Speaker 03:
Thank you.

[00:29:47] Speaker 00:
Thank you.

[00:30:04] Speaker 01:
Thank you.

[00:30:04] Speaker 01:
I'd just like to start quickly responding on the First Amendment portions.

[00:30:09] Speaker 01:
So in Wyrom, it's worth noting the court stressed that the First Amendment arguments were clearly without merit because the issue here is civil accountability for the foreseeable results of a broadcast, which create an undue risk of harm to

[00:30:24] Speaker 01:
decedent, the First Amendment does not sanction the infliction of physical injury merely because it achieved their word rather than act.

[00:30:30] Speaker 01:
I think that reflects more broadly that laws of general applicability, such as wrongful death statutes or tort liability, even if they have incidental effect on speech, are nevertheless outside the ambit of the First Amendment.

[00:30:45] Speaker 03:
So, I mean, I was thinking that there's a bookstore in my neighborhood.

[00:30:52] Speaker 03:
There's several, but one is the world's largest online retailer, but there's a small bookstore in my neighborhood.

[00:30:58] Speaker 03:
And you go in and they have a shelf and it says, you know, staff recommendations.

[00:31:01] Speaker 03:
And the staff is also, you know, always likes to talk to people when they come in.

[00:31:07] Speaker 03:
They say, well, you liked this, maybe you should try that.

[00:31:12] Speaker 03:
You know, if they recommend,

[00:31:15] Speaker 03:
Did somebody read Anna Karenina?

[00:31:18] Speaker 03:
You think a state could make that the basis of tort liability consistent with the First Amendment?

[00:31:23] Speaker 01:
I think one of the limiting principles in distinguishing features of algorithmic targeting as opposed to the conversation in the book store is that it's not even clear that clandestine algorithmic manipulation or control or data surveillance would constitute expressive conduct.

[00:31:38] Speaker 03:
So is your answer to the hypothetical, like, no, that that can't be made a tort?

[00:31:43] Speaker 01:
In the bookstore example?

[00:31:45] Speaker 01:
Yes, Your Honor.

[00:31:46] Speaker 03:
Okay, and so then the algorithm, I mean, the algorithm as such, I take it, is not... I mean, that doesn't harm anyone.

[00:31:57] Speaker 03:
It's that the algorithm generates a recommendation, right?

[00:32:00] Speaker 03:
The algorithm leads Netflix to say, like, you know, we think you might enjoy watching this, right?

[00:32:06] Speaker 01:
That's highly fact-dependent.

[00:32:07] Speaker 01:
So, for example, one of the social phenomenon that gets a lot of attention now is

[00:32:12] Speaker 01:
YouTube recommendations, for example, increasingly radicalize people because the algorithms aren't just designed to necessarily feedback something you would like.

[00:32:21] Speaker 01:
It kind of promotes you towards increasingly addictive content or engaging content.

[00:32:26] Speaker 03:
Right, but what the algorithm is doing is

[00:32:31] Speaker 03:
Encouraging you to watch something right?

[00:32:33] Speaker 03:
I mean, it's not just the algorithm running on their computer Doesn't do anything.

[00:32:37] Speaker 03:
It's only it generates some communication to the person that says Hey, watch this right?

[00:32:43] Speaker 01:
That's a very small portion of it in tip of the iceberg of course the allegations of the complaint talk about How Netflix is only to engineer is talking about how it's also constantly surveilling every single mouse click that you have it's watching everything you're doing it's tracking and

[00:32:56] Speaker 01:
how long you linger, what time you watch.

[00:32:59] Speaker 03:
So that it can feed content to you, right?

[00:33:03] Speaker 01:
That it could then perform big data analytics to figure out in certain tests.

[00:33:10] Speaker 01:
So on Netflix's own website, they'll explain how what they actually do is take all that information, run it through incredibly sophisticated data analytics, run AB experiments, as they're called on people, where I try different things out to see how you'll respond.

[00:33:25] Speaker 01:
And over time, use that to control

[00:33:27] Speaker 01:
and manipulate your behavior.

[00:33:28] Speaker 03:
But the way they control, I mean, the way they control and manipulate your behavior is by generating some sort of recommendation that you should view something, right?

[00:33:37] Speaker 01:
It ultimately does end in some sort of, I guess akin to the RKO case where, you know, there's, it ultimately does end up in speech, but I don't think that that would necessarily.

[00:33:48] Speaker 03:
Well then why, so why, from the First Amendment point of view, why is, you know,

[00:33:55] Speaker 03:
I'm an employee at a bookstore and I thought about the books that you've read and decided to recommend this one.

[00:34:02] Speaker 03:
If that's protected, why is, like, I used a computer to analyze lots of data and then recommend that you view a particular show?

[00:34:10] Speaker 03:
I don't see why they're different from a First Amendment point of view.

[00:34:13] Speaker 01:
Um, I guess I'd be fairly fact-specific, but so here, uh, Netflix's own suicide prevention expert warned them that if children saw this, they would kill themselves, and then knowing that Netflix then took

[00:34:26] Speaker 01:
efforts to use their algorithmic manipulation tools to actually force specific children to watch it.

[00:34:32] Speaker 01:
I understand the analogy somewhat to the bookstore, but of course the friendly librarian in your neighborhood is not running constant data analytics surveillance on you, presumably.

[00:34:45] Speaker 03:
Why does that matter?

[00:34:48] Speaker 03:
Maybe there's some other sort of invasion of privacy or something, but I don't see why that makes a difference to whether the speech that is the outcome of the process is protected speech or not.

[00:35:01] Speaker 02:
I take it if it turns out your friendly librarian is a former Netflix algorithm engineer who got tired of working at Netflix and so went and worked at a librarian, wrote up some code based on your prior books you checked out to create a little list, you know, of three books.

[00:35:21] Speaker 02:
And so that that librarian and the other librarians

[00:35:25] Speaker 02:
you know, in order to make their life easier, they get every time somebody walks in, it prints out this little list and they can pretend like they know you, but they don't really, they're just like, hey, have you thought about renting such and such, which has been spit out by an algorithm?

[00:35:36] Speaker 02:
I mean, in that circumstance, I think your position would be, yeah.

[00:35:41] Speaker 02:
that there's not a First Amendment problem, and I guess I'm trying to figure out why.

[00:35:46] Speaker 02:
Whether it's your actual friendly librarian who knows you and just says, oh, if you like this book, you like this book, or whether there's somehow some algorithm underneath that, how does that change the fact that ultimately it is First Amendment conduct, it seems like, to be recommending to you a book?

[00:36:02] Speaker 01:
So the CNN v. Wilson California Supreme Court case, at least in the antislapped context, citing the Supreme Court of the United States Cohen decision, did stress the difference between incidental effects on speech.

[00:36:16] Speaker 01:
And I think we would just say that the use of the algorithm, the use of the algorithm in light of the knowledge and to the really unique degree of control here, given the fact-specific nature of the technology,

[00:36:27] Speaker 01:
a lot of non-expressive conduct that's outside the ambit of the First Amendment that then at the end is used to create highly foreseeable risk with a little bit of cherry on top of speech.

[00:36:39] Speaker 01:
A very crude analogy might be I go to the park to exercise my First Amendment right to burn a flag and I just negligently do it and having to start a fire that burns the family picnicking next to me.

[00:36:50] Speaker 01:
I can't just say, well, I was exercising my First Amendment right.

[00:36:53] Speaker 01:
The generalized tort laws and run for death statute of California are just laws of general applicability that just like in RKO wouldn't permit you to

[00:37:04] Speaker 01:
hide behind the First Amendment for creating highly foreseeable risk.

[00:37:07] Speaker 01:
And given the facts that Netflix's own experts and data engineers are talking about how they're controlling and deciding for people what they're watching next and that they're leading them, including children, specific children, directly to content that they're warned would result in their suicide, we just think it's a highly factually distinct situation from some of the hypotheticals being posited.

[00:37:30] Speaker 03:
Thank you very much.

[00:37:31] Speaker 03:
Thank you very much.

[00:37:33] Speaker 03:
Thank both counsel for their arguments and the case is submitted and you're adjourned.