[00:00:00] Speaker 00: the case is now submitted. [00:00:04] Speaker 00: And we'll move on to our final argument set for this morning, which is Net Choice versus Bonta, case number 25-146. [00:00:47] Speaker 00: Mr. Keller? [00:00:49] Speaker 01: May it please the court, Scott Keller for NetChoice. [00:00:53] Speaker 01: I'd like to reserve five minutes for rebuttal. [00:00:55] Speaker 01: California's SB 976 violates the First Amendment by requiring parental consent before minors can access personalized feeds, imposing speech restrictive default settings, and mandating age assurance for all users. [00:01:09] Speaker 01: And two key Supreme Court cases control this. [00:01:11] Speaker 01: case. [00:01:12] Speaker 01: First, under Brown versus Entertainment Merchants Associations, website users have a constitutional right to access protected speech without parental consent or age gates. [00:01:22] Speaker 01: Second, Moody versus NetChoice held that personalized, individualized feeds are a distinctive, expressive offering, to quote Moody, and those are protected by the First Amendment, and that includes when websites use algorithms to implement their editorial policies. [00:01:38] Speaker 00: So, Kelso, can I start with standing on specifically – I mean, you really have three – you have personalized – as I understand it, you have three claims here, or three provisions – the personalized feeds, the default settings, and then the age verification. [00:01:56] Speaker 00: I wanted to – and then you have an as-applied and a facial challenge to each of those. [00:02:01] Speaker 00: Let's start with the as-applied challenge to the personalized feeds. [00:02:09] Speaker 00: Don't you have to show, doesn't there have to be evidence of how these personalized feeds work in order to actually handle the as applied challenge? [00:02:19] Speaker 01: I don't think so, Your Honor. [00:02:20] Speaker 01: And the reason for that is the nature of the First Amendment claim is going to be the same regardless of how any particular website does content moderation or how it orders or what editorial decisions it's making. [00:02:33] Speaker 01: We know from Moody [00:02:34] Speaker 01: for instance, that even when a website is using editorial discretion and how to order speech based on its community guidelines, its content moderation policies, and it's pairing that with a decision to also order speech based on what the user's preferences and information are, we know that's fully protected. [00:02:53] Speaker 00: Well, you're jumping into the merits, but I'm asking a standing question for basically an associational standing question where, I mean, NetChoice doesn't have the standing. [00:03:03] Speaker 00: It's based on your members that have standing here. [00:03:06] Speaker 00: And you've said, I think, [00:03:10] Speaker 00: in full candor, it has to be, I think is true, that all of your members have different algorithms, different ways in which they do the personalized feeds. [00:03:19] Speaker 00: I don't understand how the Constitution couldn't or wouldn't apply differently based on those personalized feed algorithms. [00:03:29] Speaker 01: Well, they all involve human review, and all of these policies, these content moderation community guidelines policies, are publicly available. [00:03:37] Speaker 01: And if I can cite the court to the record on this, excerpts 309 to 310 says that these are publicly available community guidelines. [00:03:45] Speaker 01: Excerpts of 354. [00:03:46] Speaker 00: Wait, wait, wait. [00:03:47] Speaker 00: That can't be true. [00:03:49] Speaker 00: I mean, the algorithms that you use to provide personalized feeds are publicly available? [00:03:54] Speaker 01: No. [00:03:55] Speaker 01: The community guidelines, the content moderation editorial policies. [00:03:59] Speaker 00: Yeah, but that's not what we're talking about. [00:04:00] Speaker 00: We're talking about personalized feeds. [00:04:02] Speaker 00: You have an algorithm, as I understand it, correct me if I'm wrong, it's very easy to get out of my comfort zone when you're looking at this, but as I understand it, the challenge is you can't [00:04:14] Speaker 00: They're prohibiting personalized feed so that when a kid or anyone is searching, there's an algorithm that says, OK, you search for this, I'm going to feed you additional information. [00:04:25] Speaker 00: And everybody has a different algorithm to do that. [00:04:32] Speaker 01: The algorithms are not public. [00:04:34] Speaker 01: That's correct. [00:04:35] Speaker 01: But that doesn't change the First Amendment analysis, regardless of how any website is... Oh, I see. [00:04:41] Speaker 00: Okay. [00:04:41] Speaker 00: But you are trying... I was just going to say bring it back to standing because I have a separate issue on the merits. [00:04:47] Speaker 01: And I'm happy to bring it back to standing. [00:04:49] Speaker 01: But I do think they're interrelated. [00:04:50] Speaker 01: And the reason they're interrelated because it's the nature of the First Amendment claim that's being raised. [00:04:54] Speaker 01: Now, and just to be very clear, the state concedes that we can raise a facial challenge. [00:04:59] Speaker 01: And so all of these answers right now are going to... [00:05:01] Speaker 00: No, I understand it's that the ads applied. [00:05:03] Speaker 00: Let's let's move quickly to the facial challenge because there you seem to have a different problem. [00:05:08] Speaker 00: And Moody, I think actually hurts you there. [00:05:11] Speaker 00: I mean, you have several justices who've written and said the problem with the facial challenge is you have to show that it's unconstitutional in all circumstances. [00:05:21] Speaker 00: And I don't know how you even do that. [00:05:23] Speaker 01: Well, no. [00:05:24] Speaker 01: What Moody said is in a First Amendment case, we have to show that the unconstitutional applications substantially outweigh any constitutional applications. [00:05:32] Speaker 01: Now, we think we also satisfy the traditional Salerno no-set-of-circumstances test. [00:05:36] Speaker 01: But what this court said in its previous net choice versus Bonta decision was that you don't have to do a granular census identifying every single website that's covered. [00:05:45] Speaker 01: Rather, what Moody said is it was looking at what kinds of websites [00:05:49] Speaker 01: might fall on one side of the constitutional line versus the other. [00:05:52] Speaker 01: I mean, Moody was talking about events management, email, online marketplace, payment services, ride-sharing services. [00:05:58] Speaker 01: There's no dispute here that those are simply not covered by this law. [00:06:01] Speaker 01: And so in that scenario, whether it's this court's net choice versus bond to previous decision or it's ex-corporation's decision... Well, but let me read you from Moody. [00:06:09] Speaker 00: Justice Barrett says the analysis is bound to be fact-intensive and it will surely vary from function to function and platform to platform. [00:06:16] Speaker 00: Justice Jackson says even when evaluating a broad facial challenge, courts must make sure they carefully parse out not only what entities are regulated, but how the regulated activities actually function. [00:06:28] Speaker 00: Justice Alito says it is impossible to determine whether they are unconstitutional in all their applications without surveying those applications. [00:06:37] Speaker 00: How do you get around these statements that in order to succeed on that claim, [00:06:43] Speaker 00: you have to go function by function, platform by platform. [00:06:51] Speaker 01: Because here, in this case, the state's not arguing that things beyond personalized feeds are covered. [00:06:58] Speaker 01: And so here, there's no debate about email or ride sharing or payment services. [00:07:02] Speaker 01: Instead, what we're talking about are the exact personalized, individualized, curated feeds that Moody said are distinctive, expressive offerings that the First Amendment protects. [00:07:12] Speaker 01: So NetChoice versus Bonta and Axe Corporation, this court's already construed Moody. [00:07:18] Speaker 01: And those cases say that a facial challenge is absolutely proper when the arguments being raised would be the same regardless of what website we're talking about. [00:07:25] Speaker 01: And that is really crystallized by, think about a user that would be accessing one of these websites. [00:07:30] Speaker 01: Their burden is going to be the same regardless of however a website wants to prioritize football videos versus cat videos versus political speech. [00:07:38] Speaker 01: I mean, we're talking about billions of posts of fully protected speech. [00:07:42] Speaker 01: So regardless of how an algorithm operates, we can raise a facial challenge. [00:07:46] Speaker 01: We also have the ability to raise as applied challenges. [00:07:48] Speaker 01: I don't think that really matters here because I think all roads lead to the First Amendment violations. [00:07:52] Speaker 01: We know from Brown that the state cannot block access to protected speech by saying you need parental consent. [00:08:01] Speaker 01: We know from Packingham that when you restrict access to social media, that triggers heightened First Amendment scrutiny. [00:08:07] Speaker 01: And we know from Moody that when the state wants to come in and say, you can't do personalized or individualized feeds the way that you want to, company, and we're going to government, the government is going to override your editorial decisions, that that also is a First Amendment problem. [00:08:20] Speaker 04: Let me ask you this as to, you talked about heightened scrutiny. [00:08:25] Speaker 04: It's not entirely clear to me that we should apply strict scrutiny because I read our own, our unbunked decision on Project Veritas as contemplating intermediate scrutiny for a case like this. [00:08:38] Speaker 04: How do you respond to Project Veritas on that point? [00:08:41] Speaker 01: Yeah, I don't think Project Veritas would have applied intermediate scrutiny if there had been, say, content-based exceptions for consumer reviews in that recording. [00:08:50] Speaker 04: Because here, we have not only… We've got a couple of things on which you're arguing, but it depends. [00:08:57] Speaker 04: One is the consumer-based reviews, and the other one is the solicitations. [00:09:05] Speaker 04: I get that. [00:09:06] Speaker 04: But I'm not sure I… [00:09:12] Speaker 04: read Project Veritas the same way you do. [00:09:15] Speaker 04: Veritas very clearly says, just because there's some touching on what's in there, that that automatically means strict scrutiny. [00:09:23] Speaker 04: And you've got a pretty slender read upon which you're, I think, relying here as to why strict scrutiny is triggered. [00:09:29] Speaker 01: Well, your honor, let me give two responses. [00:09:31] Speaker 01: One, I don't think it matters. [00:09:31] Speaker 01: I think we win anyway. [00:09:32] Speaker 01: But two, to take the question head on, I do think this law is all about regulating content. [00:09:37] Speaker 01: When the state comes in and says, we want to regulate personalized feeds, what we're talking about are feeds that are giving users the most engaging speech that they want to see. [00:09:45] Speaker 04: Well, no, not that they want to see, that Europe clients want them to see. [00:09:50] Speaker 01: Well, Your Honor, I think this is a back and forth about when a user creates account and a user on these various websites then has a personalized feed that is curated, that can be based on, yes, the community guidelines and the editorial policies of the websites. [00:10:04] Speaker 01: That can also be based on user experience. [00:10:06] Speaker 04: Yes, but what your clients are after is not responding to requests by the user. [00:10:10] Speaker 04: What your client is after is giving to the user what your client wishes to provide to the user. [00:10:15] Speaker 01: And I don't think there's any First Amendment problem with that. [00:10:18] Speaker 04: I understand that, but I don't want to mischaracterize who wants what. [00:10:21] Speaker 01: Well, I think it can go both ways, Your Honor. [00:10:23] Speaker 01: And we know from Moody that when there are personalized feeds, that that's protected. [00:10:27] Speaker 01: And also, to come back to the intermediate versus strict scrutiny point, I don't think it matters. [00:10:31] Speaker 01: Take Brown. [00:10:32] Speaker 01: If Brown had said you need parental consent to get any video game and not just a violent video game, I think that just makes the law worse, and there's going to be a lot more First Amendment problems. [00:10:41] Speaker 01: Take Packingham. [00:10:42] Speaker 01: That was an intermediate scrutiny case. [00:10:44] Speaker 01: Moody itself said we don't have to decide if strict scrutiny or intermediate scrutiny applies. [00:10:48] Speaker 01: because the law fails anyway. [00:10:50] Speaker 00: I thought your best argument for a strict scrutiny under the case law was not the personalized feed being content-based, but that there was an exception where it only if they were dedicated to commercial transactions [00:11:05] Speaker 01: Yeah. [00:11:07] Speaker 01: I agree. [00:11:07] Speaker 01: And just in response to Judge Fletcher's question of an additional argument, but I agree. [00:11:11] Speaker 00: I think the fact that this has exceptions for commercial transactions and consumer reviews and also... I mean, that seems to me to be... I mean, I guess if California went and amended the law and said, okay, we're going to do it across the board, then all these other... [00:11:24] Speaker 01: Issues come into play and we could talk about that too, but I think there's also another content-based distinction Which is website generated content as opposed to third-party or user content is also treated differently by this law And this also goes to why this law is very under inclusive. [00:11:38] Speaker 01: It doesn't include all personalized fees, you know Spotify or Hulu making personalized recommendations That's fine. [00:11:43] Speaker 01: But yet when YouTube wants to present very very similar content videos it can't [00:11:48] Speaker 04: So far we've been talking about this without mentioning the fact that we're talking about kids. [00:11:54] Speaker 04: Is the analysis at all affected by the fact that we're talking about kids rather than minors rather than adults? [00:12:02] Speaker 01: I don't think so, under Brown, and the reason is because the state can't come in and say that a minor doesn't have the right to speak or be spoken to. [00:12:09] Speaker 01: I mean, we wouldn't think, for instance, that a government can impose parental consent to access a library card catalog or a curated community bulletin board, you know, from Erz-Nazic back in the 1970s from the Supreme Court. [00:12:23] Speaker 01: The minors have constitutional rights. [00:12:25] Speaker 04: Well, I understand that, but you're saying there's no distinction whatsoever and it needs to be drawn from the fact that we're talking about minors? [00:12:33] Speaker 04: You say it's entirely irrelevant? [00:12:35] Speaker 01: Your Honor, I don't think that it is entirely irrelevant. [00:12:39] Speaker 01: I think that the binding precedent of Brown provides that the state can't require parental consent. [00:12:44] Speaker 00: Now, what this Court... But wait a second. [00:12:46] Speaker 00: I mean, clearly children have different First Amendment rights, even under our current law, than [00:12:52] Speaker 00: adults. [00:12:53] Speaker 00: I mean, we recognize that in the school context all the time, that there can be greater regulation in the school context for minor children. [00:13:01] Speaker 00: So, I mean, just following up on Judge Fletcher's point, I mean, it may not—I don't know if that's a winner argument for the state, but I think you have to recognize that minors have different First Amendment rights. [00:13:14] Speaker 01: Well, Judge Nelson, in the context of schooling, we would—of course, that could be different. [00:13:18] Speaker 00: But it's not just the schooling, it's also the fact that there [00:13:22] Speaker 00: underage? [00:13:24] Speaker 01: Well, when it comes to schooling, I think that line of cases has been distinguished. [00:13:28] Speaker 00: When we're talking about private citizens on the private— But if you go to schools, if you go to universities where you're not dealing with minor children, then the First Amendment rights are different. [00:13:36] Speaker 00: So it's not just whether it's school or not school. [00:13:39] Speaker 00: It has to do with their basis as children, I think. [00:13:43] Speaker 01: And what Brown tells us is that the state doesn't have the authority to come in and tell what minors can be spoken to or how they can speak. [00:13:50] Speaker 04: I don't think it goes so far as that. [00:13:53] Speaker 04: I mean, you would read this to say, minors are adults. [00:13:57] Speaker 04: I mean, I haven't quite said that, but in effect, I think that's what your argument is. [00:14:01] Speaker 01: Your Honor, I'm not saying that. [00:14:02] Speaker 01: I think this goes to the scope of First Amendment rights. [00:14:04] Speaker 01: For instance, we wouldn't say that government can ban Saturday morning cartoons simply because they think that they're too addictive. [00:14:11] Speaker 01: And that's another aspect of this case, coming in and saying, we're going to slap the label addictive on speech that users really want to engage with. [00:14:18] Speaker 00: That actually is addictive. [00:14:20] Speaker 00: You sound like the tobacco companies. [00:14:23] Speaker 01: Your Honor, absolutely not. [00:14:24] Speaker 01: And there's two responses to that. [00:14:26] Speaker 01: One, we're talking about speech here. [00:14:28] Speaker 01: We're talking about fully protected speech. [00:14:29] Speaker 01: We're not talking about a substance that is a carcinogen. [00:14:33] Speaker 01: And second of all, the record in this case, if I could point the court to it— It might be actually worse than a carcinogen. [00:14:39] Speaker 00: I mean, what we're doing to the future generation, I think—I mean, I know that that's not an issue here, but, I mean, we got an entire generation—there's a problem here. [00:14:48] Speaker 00: Are you saying that the state—let me ask you about the compelling state interest. [00:14:51] Speaker 00: Are you saying that the state does not have a compelling interest in protecting children from addictive behavior? [00:14:57] Speaker 01: Your honor, what we are saying is, well, just what Brown said, what the state has the power to do, it can protect minors, but they can't do that and satisfy that interest. [00:15:07] Speaker 00: I understand that, but you, so you're not disputing that there's a compelling state interest here. [00:15:12] Speaker 00: If we go with you on strict scrutiny, [00:15:18] Speaker 00: You're not denying that the state has a compelling state interest here. [00:15:20] Speaker 00: You're attacking the least restrictive means portion of the analysis. [00:15:24] Speaker 01: No, we are attacking the government's interest because the government here is trying [00:15:28] Speaker 01: What the government essentially is trying to do is prevent harm from protected speech. [00:15:33] Speaker 01: I don't think there's any basis to do that. [00:15:34] Speaker 01: Wait a minute. [00:15:34] Speaker 04: The government's trying to protect harm. [00:15:36] Speaker 04: You characterize it as protected speech. [00:15:38] Speaker 04: The government does not characterize it that way. [00:15:41] Speaker 01: They do, and I think they're very wrong about that for Moody and Packingham and Brown. [00:15:45] Speaker 01: These are personalized fees. [00:15:46] Speaker 01: This is speech. [00:15:47] Speaker 01: If I can also, before I sit and reserve the rest of my rebuttal time, I'd like to address the evidence the defendant has cited, because it is inconclusive [00:15:55] Speaker 01: It doesn't address personalized feed specifically, and it establishes correlation at most. [00:15:59] Speaker 01: Their declaration, this is excerpt 177, says the Surgeon General found social media has both positive and negative impacts on children and adolescents, and these impacts vary based on individual differences between children and based on context. [00:16:13] Speaker 01: That same federal declaration at 178 concedes studies finding on social media use are not consistent, and some find no association between social media use [00:16:21] Speaker 01: and mental health problems. [00:16:23] Speaker 01: We would submit that when we're talking about billions of posts of fully protected speech, that that is not sufficient at all for the government to come in and override First Amendment rights, if I could reserve the rest of my time for rebuttal. [00:16:34] Speaker 01: Thank you. [00:16:56] Speaker 02: morning your honors may please the court. [00:16:59] Speaker 02: My name is Chris Kissel and I'm representing the attorney general of California. [00:17:04] Speaker 02: The district court did not abuse its discretion when it denied net choices request for a preliminary injunction. [00:17:13] Speaker 02: There are several reasons why that's true. [00:17:16] Speaker 02: First, the district court correctly recognized that SB 976 addresses harms caused to minors by the addictive features of online platforms. [00:17:28] Speaker 02: The statute does not restrict minors' access to content, and it does not restrict companies' ability to exclude continent disfavors. [00:17:36] Speaker 00: Here's where. [00:17:38] Speaker 00: Under our current case law, I think you run into a little bit of a problem, which is you do distinguish between commercial transactions and consumer reviews on the one hand and other content on the other hand. [00:17:54] Speaker 00: If you look at Discovery Network, the Supreme Court said you can't distinguish between, say, newspapers and handbills. [00:18:02] Speaker 00: that's content-based. [00:18:04] Speaker 00: So I don't understand how this isn't content-based based on the current Supreme Court president. [00:18:11] Speaker 02: It's not content-based because the distinction that Your Honor is referencing between commercial websites and other kinds of websites is not a distinction that's made on the basis of content. [00:18:23] Speaker 02: It's not a distinction that's made on the basis of ideas. [00:18:27] Speaker 00: Sure it is. [00:18:28] Speaker 00: I mean, you can go to Facebook Marketplace, and you can get addicted to Facebook Marketplace and spend all your parents' money, but you can't get addicted to kitten videos on YouTube. [00:18:43] Speaker 02: Well, the distinction, though, is based on... Well, go ahead. [00:18:49] Speaker 02: Well, I actually would point the court to the Project Veritas case, the recent Anban case, because I think that that [00:18:57] Speaker 02: provides the explanation that's key to understanding when a law becomes content-based. [00:19:05] Speaker 02: And that's because either on its face or in its purposes, the law has to be targeting particular ideas or messages, essentially. [00:19:14] Speaker 02: That's not true. [00:19:15] Speaker 00: You're talking about viewpoint discrimination, and that's different than content-based designations. [00:19:23] Speaker 02: Well, not simply viewpoints. [00:19:25] Speaker 02: I mean, that is what viewpoint discrimination is, but also, I mean, what Project Beritas says is when those distinctions are made, basically, [00:19:35] Speaker 02: and raising the risk that there are ideas or messages that will be removed from the marketplace of ideas because the government has some purpose of removing those ideas from the marketplace of ideas. [00:19:49] Speaker 02: And so if the distinction is made because there are legislative findings, facts about the harms that are caused to minors, that these user data [00:20:05] Speaker 02: generated functions that are causing children to have these habit-forming effects. [00:20:14] Speaker 02: And there are certain websites that don't have those harms. [00:20:17] Speaker 02: But what does that mean? [00:20:18] Speaker 00: I mean, they've made a decision that Facebook Marketplace is not addictive? [00:20:25] Speaker 00: Because I think there's a little more jaded analysis, which is commercial interests came in and got an exclusion here. [00:20:32] Speaker 00: I can't speak to that. [00:20:34] Speaker 00: I know. [00:20:35] Speaker 00: But that's the whole problem with the content-based distinction here. [00:20:40] Speaker 00: I mean, I think if California had come in and said all feeds, regardless of the nature, are prohibited, I think California would be on much more solid footing that this should be subject to intermediate scrutiny. [00:20:54] Speaker 00: It's the carve-outs that create a problem here. [00:20:58] Speaker 02: Well, the fact that there are carve-outs, I think the court should see that as an effort to narrowly tailor this statute at the features that the legislature determined are causing this harm. [00:21:10] Speaker 02: And so if the legislature determined that children are not on eBay at one o'clock in the morning scrolling through lampshades, but instead it's these sites that have [00:21:23] Speaker 02: that are using the user data otherwise, that are not subject to that exception, then that's only showing that the statute is narrowly tailored at the harms of the literature. [00:21:33] Speaker 04: Now, if we were to conclude that the provisions based on commercial transaction and consumer reviews are invalid, there's a severability provision at the end. [00:21:42] Speaker 04: So what do we do with that? [00:21:43] Speaker 04: How's that going to operate? [00:21:45] Speaker 04: Do we just take that out and the rest of the statute stands? [00:21:48] Speaker 02: Yes, that's what I would suggest if that the inclusion of that exception renders the statute unconstitutional. [00:21:55] Speaker 04: Because there is a severability at the end of the statute. [00:21:57] Speaker 00: Yes. [00:21:58] Speaker 00: But I mean, that's interesting. [00:22:00] Speaker 00: I only thought about severability in the context of the three different provisions at issue. [00:22:05] Speaker 00: Is it severable? [00:22:06] Speaker 00: I mean, can we actually do that? [00:22:07] Speaker 00: Can we actually redline a contempt-based? [00:22:12] Speaker 00: I mean, to me, that feels like we'd be rewriting the statute and saying, well, if you had actually gone and passed a constitutional statute, we're going to rewrite it so it's constitutional. [00:22:21] Speaker 00: I don't know if that, I mean, but your position is we have the authority to do that. [00:22:24] Speaker 04: Well, let me just read you the severability provision. [00:22:27] Speaker 04: If any provision of this chapter or application thereof to any person or circumstance is held invalid, that invalidity shall not affect other provisions or applications of this chapter that can be given effect without the invalid provision or application. [00:22:40] Speaker 04: And to this end, the provisions of this chapter are declared to be severable. [00:22:46] Speaker 02: So under that provision, I would say, yes, if the court sees that portion of the statute as being the impediment to constitutionality, the court should do that. [00:22:57] Speaker 02: I would just emphasize that, as I said, it really just shows that what the legislature was doing was being attentive to the particular harm. [00:23:08] Speaker 00: I understand. [00:23:08] Speaker 00: I mean, the legislature is trying to deal with a real problem here. [00:23:15] Speaker 00: Let's say we agreed with you that there's no associational standing, just hypothetically. [00:23:23] Speaker 00: I mean, I don't know. [00:23:24] Speaker 00: These are complicated issues, so I don't want anything I say to indicate. [00:23:28] Speaker 00: But hypothetically, if we agreed with you that there's problems with standing on the as applied challenge and problems with the merits under Moody for the facial challenge, is there benefit in lifting that? [00:23:44] Speaker 00: Right now there's a state pending appeal. [00:23:47] Speaker 00: on that issue, would there be benefit to temporarily lifting the stay on that issue even if we keep the stay in play, the state pending appeal in place on say the, on the default settings issue? [00:24:01] Speaker 00: I'm sorry, lifting this stay for the purpose of? [00:24:03] Speaker 00: For lifting the stay on the injun- right now there's a, there's an injunction pending appeal on all- [00:24:11] Speaker 00: the entire act, if we thought that there's at least a possibility that we would uphold in some fashion the personalized feed, would there be some benefit in going out before we issue a decision and lifting the state pending appeal? [00:24:28] Speaker 02: Yes, I think the benefit would be allowing the state to enforce the statute. [00:24:36] Speaker 00: Going back to the severability provision, you could do that as to the personalized feed separate and apart from the default settings. [00:24:45] Speaker 02: I don't see any reason why that would hinder the state from enforcing those provisions. [00:24:52] Speaker 02: And I think every day that the state is not able to enforce those provisions is a day that the state is not able to address these important harms. [00:25:01] Speaker 02: So I would say, yes, that's possible. [00:25:04] Speaker 03: I have a question. [00:25:06] Speaker 03: Last night, I reread Judge Davila's opinion, and I get to the very last [00:25:13] Speaker 03: paragraph, I'm sure you're familiar with it, both sides are. [00:25:18] Speaker 03: And he says something like, this case came on very quickly, it was expedited to our level, the trial court level, we know it was expedited to us. [00:25:32] Speaker 03: And then he says something like this, things that are currently enjoined may not be enjoined, [00:25:42] Speaker 03: things that have not been joined, may well become, may become enjoined. [00:25:51] Speaker 03: What do you take from that? [00:25:52] Speaker 03: What do you think he meant? [00:25:56] Speaker 02: If we're talking, if we're thinking about the same part of that order. [00:26:00] Speaker 03: It's the very last paragraph of the order. [00:26:02] Speaker 02: I think Judge Davila was recognizing, rightly so, that these are complicated First Amendment issues that [00:26:10] Speaker 02: the more we talk about them and read the court's precedents and listen to what the Supreme Court has had to say, that we understand the issues better. [00:26:18] Speaker 02: I don't agree with the idea that the conclusion should change because our position has stayed the same. [00:26:27] Speaker 03: Well, let me tell you how I read it. [00:26:28] Speaker 03: I've only been doing this for 30 years. [00:26:34] Speaker 03: I read Judge Davila saying, [00:26:38] Speaker 03: This is sort of interlocutory in nature. [00:26:41] Speaker 03: It's temporary in nature. [00:26:43] Speaker 03: I haven't heard everything I need to hear to reach a conclusion about the enforceability or non-enforceability of this particular statute. [00:26:55] Speaker 03: And that tells me he anticipates hearing more. [00:27:00] Speaker 03: Am I wrong in that? [00:27:03] Speaker 02: No, no, not at all, Your Honor. [00:27:05] Speaker 02: On that score, I think the state would emphasize that point that you made, because I think it's important that this is on an interlocutory posture, because what it means is there hasn't been an opportunity for full discovery. [00:27:20] Speaker 02: So we don't know how these feeds actually work, which is crucial to applying the First Amendment standards and understanding what this statute would do in application. [00:27:30] Speaker 02: And so for that purpose, I mean, I would absolutely agree. [00:27:36] Speaker 02: We had two or three weeks to assemble an evidentiary record to defend the statute. [00:27:42] Speaker 02: And I think that's important for the court to recognize that this is an interlocutory posture. [00:27:47] Speaker 03: One of the points the net choice parties make is that there are less restrictive measures that California could have undertaken. [00:28:00] Speaker 03: Is that been flushed out? [00:28:05] Speaker 03: I could ask that of your friend on the other side. [00:28:07] Speaker 02: No, I don't think it's been flushed out in the sense that we don't have evidence in the record about every alternative that exists. [00:28:18] Speaker 02: I think that would be important for the ultimate analysis. [00:28:21] Speaker 02: But in terms of the alternatives that Net Choice has pointed to, [00:28:28] Speaker 02: None of those do what the statute does. [00:28:31] Speaker 02: A lot of them, maybe all of them, would restrict access to these platforms altogether, would restrict access to the internet altogether. [00:28:42] Speaker 02: There are certainly parents out there who may not want to completely restrict access to social media or completely restrict access to the internet. [00:28:50] Speaker 02: And what this statute does is it gives those parents a tool to just control the most addictive aspects of these platforms. [00:28:59] Speaker 02: And that's why I think, you know, on the current record, NetChoice hasn't made the showing that that would render the statute unconstitutional. [00:29:06] Speaker 02: But to get back to the answer, yes, I mean, there are many aspects of this case that I think are very factually based. [00:29:14] Speaker 02: And I think that matters when the court hears. [00:29:16] Speaker 00: Can I ask about the least restrictive means? [00:29:19] Speaker 00: Because there, I think you run up against our prior opinion in NetChoice, the prior NetChoice versus Bond opinion, where, I mean, [00:29:29] Speaker 00: I would have thought least restrictive means were things that the government could do that was less restrictive. [00:29:36] Speaker 00: But our decision there seemed to look at, well, you could just do educational programs or parents could become more involved. [00:29:45] Speaker 00: I mean, whether we agree with our prior decision, aren't we sort of bound by that to say that there are less restrictive means that we've already recognized than what California has done here? [00:29:57] Speaker 00: So if we go to strict scrutiny, doesn't that become a problem for you? [00:30:02] Speaker 00: And how would you address the net choice versus bond to prior decision? [00:30:06] Speaker 02: Well, if the issue is [00:30:10] Speaker 02: You know, are there conceivable government alternatives to regulating in this way? [00:30:14] Speaker 02: I wouldn't disagree that that would be part of the analysis on strict scrutiny. [00:30:19] Speaker 02: What I would disagree with is that there has been any indication [00:30:24] Speaker 02: in the record here, that there are government alternatives that would be less restrictive. [00:30:29] Speaker 02: I don't think there are government alternatives that be less restrictive. [00:30:33] Speaker 02: I think that the thing about this statute that is worth emphasizing is just how carefully tailored it is to the harms. [00:30:44] Speaker 02: Because as I said, there are a lot of laws out there. [00:30:49] Speaker 02: A lot of states are addressing this issue. [00:30:51] Speaker 02: Obviously, it's an issue of paramount concern. [00:30:54] Speaker 02: And I don't know that there are a lot of other statutes that go out of their way to say, we're going to make sure all of the content is still available to children. [00:31:04] Speaker 02: We're going to make sure they can still use these platforms. [00:31:07] Speaker 02: We're going to zero in on what is the most harmful aspect of these platforms. [00:31:11] Speaker 02: And that, and rather than fully [00:31:16] Speaker 02: rather than restricting access to those functions, it allows parents to make the decision for their families to make those functions available if they want to. [00:31:31] Speaker 02: So it really is, I think, the most hands-off approach that the government can take while being proactive about addressing this problem. [00:31:40] Speaker 00: Can I ask a question you may not be prepared for? [00:31:42] Speaker 00: And if you aren't, that's fine. [00:31:45] Speaker 00: But it's on my mind. [00:31:49] Speaker 00: The Supreme Court has gone to history and tradition and a lot of other constitutional provisions. [00:31:54] Speaker 00: First Amendment, Free Exercise Clause, Establishment Clause, Second Amendment, Eighth Amendment. [00:31:59] Speaker 00: It hasn't done that in free speech area yet. [00:32:04] Speaker 00: Would California have stronger arguments that this statute was constitutional if we looked at a history and tradition analysis of the free speech clause as opposed to what our current Supreme Court precedent is? [00:32:20] Speaker 02: I don't think the state would have stronger arguments. [00:32:25] Speaker 02: I think the history and tradition [00:32:27] Speaker 02: to the extent that I'm familiar with it. [00:32:30] Speaker 02: I'm also not a First Amendment scholar, but to the extent that it's related to individual expression and democratic participation and the idea that speech is the embodiment of ideas that a person has in their head that they can then point to the speech as embodying those ideas. [00:32:54] Speaker 02: I would say our First Amendment first principles, and I think they all support this law, because at the end of the day, if the main question in terms of whether there is a First Amendment impact is to what degree these functions that are regulated are expressive or embody expressive choices, [00:33:15] Speaker 02: then the question is going to be, you know, what are the expressive choices? [00:33:19] Speaker 02: Where are the expressive choices taking place? [00:33:23] Speaker 02: I think that the first principles would support that, but I know that the Supreme Court precedent also supports that because [00:33:32] Speaker 02: When you look at Justice Kagan's discussion in Moody about what does a platform, you know, what are the sort of protected characteristics of what a platform does, Justice Kagan was talking about, you know, [00:33:49] Speaker 02: the editorial discretion to exclude ideas that the platform wants to exclude and that in doing so the platforms you know policies embody expression. [00:34:06] Speaker 02: And here we're talking about a different function. [00:34:10] Speaker 02: And the court has said, even in footnote four of Moody, that expressive functions and non-expressive functions can be looked at and should be looked at separately. [00:34:23] Speaker 02: When we're talking about the function that's regulated by this statute, we're talking about something that basically just reacts to a user's preferences. [00:34:32] Speaker 02: And in that respect, [00:34:36] Speaker 02: The First Amendment considerations are different because we have to locate, well, if there's an expressive choice, which we don't think there is, where is that expressive choice made? [00:34:46] Speaker 02: Whereas the expression, is the platform doing the same thing in terms of, is it excluding the ideas that it disapproves of? [00:34:55] Speaker 02: Well, not if it's just mirroring the user's preferences, not if it's just making some algorithmic calculation of what the user wants to see and reflecting it to them like a mirror. [00:35:06] Speaker 02: That's not an expressive choice. [00:35:10] Speaker 02: On a second question, I think, [00:35:13] Speaker 02: Justice Barrett's concurrence and of course Justice Barrett was one of the five justices who was part of this sort of substantive discussion as applied discussion that Justice Kagan undertook in Moody, explains that if these choices are made by [00:35:29] Speaker 02: artificial intelligence algorithms that not only they're not executing policies, they're actually making their own determinations based on probabilities about a user wants to see. [00:35:43] Speaker 02: If those are the choices that are being restricted, those aren't the kind of choices that the First Amendment protects. [00:35:50] Speaker 02: And to your Honor's point, the founders certainly—I mean, there's a lot of things about modern society. [00:35:54] Speaker 02: Of course, the founders did not predict, but I don't think the founders would have said that the First Amendment protects a choice that is really not a choice that was made by a human being, that was made, you know, based on an analysis of some criterion. [00:36:11] Speaker 02: And I know that these [00:36:14] Speaker 02: artificial intelligence algorithms are complex, difficult to understand, which is another reason why discovery would be helpful. [00:36:22] Speaker 02: But that if they create their own criteria for these decisions, then it's impossible to say that these are the kinds of decisions that are protected under the First Amendment. [00:36:36] Speaker 02: I guess in 20 seconds I may not be... You don't have to use it. [00:36:40] Speaker 00: You can use it. [00:36:41] Speaker 00: Whatever you want. [00:36:42] Speaker 00: I'll let it go. [00:36:44] Speaker 00: Thank you, Your Honor. [00:36:45] Speaker 00: Thank you. [00:36:45] Speaker 00: Thank you for your argument. [00:36:47] Speaker 00: We'll give you rebuttal time. [00:36:52] Speaker 01: Thank you. [00:36:53] Speaker 01: Three points in rebuttal. [00:36:55] Speaker 01: First about the preliminary injunction posture, second about what websites are doing to protect minors and give parents tools, and finally, just that the state's position here would overhaul the social media companies. [00:37:04] Speaker 04: And if you could also address severability? [00:37:07] Speaker 01: Happy to address severability. [00:37:09] Speaker 01: Judge Hawkins, I think the preliminary injunction posture here is absolutely how this court should think about it. [00:37:13] Speaker 01: And I think Judge Davila's opinion shows that these are weighty issues. [00:37:18] Speaker 01: These are novel issues. [00:37:19] Speaker 01: And what we have to do is show, is there a colorable First Amendment claim here? [00:37:23] Speaker 01: And I think we have. [00:37:24] Speaker 00: We've done that. [00:37:25] Speaker 00: Well, that's not true. [00:37:25] Speaker 00: You have to show likelihood of success on the merits. [00:37:28] Speaker 01: And this court's lighting scale is showing a colorable First Amendment claim. [00:37:32] Speaker 01: And likelihood of success on the merits, I think, is part of the colorable First Amendment claim. [00:37:36] Speaker 01: But when we come forward and we have a [00:37:38] Speaker 01: courts across the country. [00:37:51] Speaker 01: that they are able to restrict speech. [00:37:53] Speaker 01: And so we have submitted declarations that show that these would overhaul websites, that also that these would impose substantial compliance costs. [00:38:03] Speaker 01: And the state essentially hasn't rebutted that. [00:38:05] Speaker 01: Instead, it said the First Amendment just doesn't apply. [00:38:08] Speaker 01: If I could address on severability, our submission is that that wouldn't fix the law. [00:38:13] Speaker 01: There would still be constitutional deficiencies. [00:38:15] Speaker 01: And regardless, I think that would be redlining the statute. [00:38:17] Speaker 01: And if the legislature wants to try again, I think you would have to do that [00:38:21] Speaker 04: The severability clause specifically invites that. [00:38:25] Speaker 01: It does, Your Honor. [00:38:26] Speaker 01: And I think when we're talking about the First Amendment in seeing that this is all about restricting speech, I think that goes to the government's interest in the tailoring problem. [00:38:33] Speaker 00: My question more on the severability is, is there a difference between, I mean, I think the severability clearly applies as to, you know, personalized feeds versus default settings. [00:38:44] Speaker 00: Like, we could come to different conclusions there and one could go forward without the other. [00:38:48] Speaker 00: But with, I mean, can we rewrite a statute to make it constitutional? [00:38:52] Speaker 00: I mean, that almost seems like taking a legislative authority to say, well, this is what you should have done. [00:38:57] Speaker 00: We're going to help you out. [00:38:59] Speaker 00: I completely agree, Judge Nelson. [00:39:00] Speaker 01: And if I can turn to the parental tools, which are a key fact. [00:39:04] Speaker 04: Let me ask you this in a different way. [00:39:06] Speaker 04: If, and this is hypothetical, if we were to conclude that the provision of the statute that is addressed to commercial transactions and consumer reviews is unconstitutional, [00:39:17] Speaker 04: and we were to take that particular provision out — because it's very discreet — is that permitted by the severability clause? [00:39:26] Speaker 01: Our submission is it's not given the First Amendment challenges we've raised. [00:39:29] Speaker 01: There would still be constitutional problems. [00:39:30] Speaker 01: It wouldn't solve the fact that parental — That's not quite my question. [00:39:35] Speaker 04: Does the severability clause tell us that we should take that out and then analyze the statute as to its constitutionality without that provision? [00:39:45] Speaker 01: In the context of a First Amendment case, I'm not sure that it does. [00:39:48] Speaker 01: And if the legislature were going to have a different... Why is that so? [00:39:53] Speaker 01: Because in the context of raising First Amendment claims, you have both the rights of websites and users. [00:39:57] Speaker 01: The fact that just redlining consumer transactions and consumer reviews wouldn't solve the problem that there are still content-based distributory websites. [00:40:04] Speaker 00: If we redlined consumer reviews, wouldn't we effectively be putting them into the purview of the statute? [00:40:11] Speaker 00: I mean, that seems to be the problem, is we're actually—I mean, we have no idea what the legislation would [00:40:15] Speaker 01: That's right and I think this entire exercise of what would the legislature have done in this hypothetical world and I don't think the court has anything before and I don't think the state has said they have. [00:40:23] Speaker 01: And if I can turn to the parental tools because here NetChoice members websites provide parent and devices and networks and routers all provide tools that parents can control their minors online experiences and the state even says that these tools are more restrictive than SB 976. [00:40:39] Speaker 01: I think that is a key part of this case [00:40:42] Speaker 01: Net Choice members' websites are trying to protect minors. [00:40:45] Speaker 01: In fact, there's evidence in this record, the excerpts of 325, that they have personalized feeds specifically because this is the main tool to safeguard minors online, to prevent them from getting bad speech. [00:40:57] Speaker 01: So, in talking about these problems, these novel weighty issues, our submission is the preliminary injunction should remain in place. [00:41:05] Speaker 01: We have satisfied the court's standard for that. [00:41:07] Speaker 01: We've presented record evidence that this would overhaul these social media websites. [00:41:11] Speaker 01: And if the state wants to take additional discovery throughout the rest of this case, that is, of course, how the normal process would play out. [00:41:17] Speaker 01: But before this court would [00:41:20] Speaker 01: go the opposite way with the consensus of courts across the country that have invalidated parental consent laws and age verification laws like this, we would ask that, and again, before even Judge Davila's recognized that this would fundamentally reorient social media websites, we'd ask that the court keep, would ask that the court reverse the partial denial of preliminary injunctive relief and allow the case to proceed with the injunction in place. [00:41:44] Speaker 00: Thank you. [00:41:45] Speaker 00: Thank you to both counsel for your very professional arguments in a very complicated case and your assistance to the court. [00:41:51] Speaker 00: The case is now submitted and the court is adjourned for today.