Last month, a federal court approved an injunction requested by industry group NetChoice over California’s Age-Appropriate Design Code Act on First Amendment grounds. This is not the first time this has happened. An injunction was first granted in September 2023. Then in August 2024, a second injunction upheld parts of the first including the request to block specific parts of the law that violated the First Amendment, but it also removed the injunction where a free speech violation was not certain. Finally, a third injunction stopped the law altogether. Now, it’s time for California to admit defeat and change course.
Given these repeated legal challenges, the question arises: can the bill survive constitutional scrutiny at all? The latest injunction on California’s age-appropriate design code shows that future attempts will likely face similar First Amendment concerns, which does not bode well for productive lawmaking.
Like much of what is wrong with technology policy these days, California’s Age-Appropriate Design Code Act finds inspiration in Europe, specifically the UK Age Appropriate Design Code. But unlike Europe, the United States has strong free speech rights under the first amendment, which led the law to be immediately challenged and enjoined multiple times in court.
The latest injunction blocked the age-appropriate design code for two main reasons.
First, as much as the code’s supporters rebut this fact, the law is inherently content-based. The state of California claims that the law is content neutral, relying on a weak comparison to literal sign regulations in Austin, Texas. But the court disagrees. It instead found that the California law differs from the Austin ruling in that it specifically targets websites and platforms likely to be accessed by children—which inherently involves content evaluation to determine its intended audience. Whereas the Austin law regulated signs based on their physical location, age appropriate design codes regulate platforms based on the content they display, with implication for free speech.
Since the law is content-based, the state must satisfy the requirements of strict scrutiny, which means it must do both of the following: 1) show that the law targets a compelling interest of the state; and 2) addresses that interest in the least restrictive manner possible.
Second, not only did the state not demonstrate that the age-appropriate design code satisfied strict scrutiny, but the court mentions that the state did not even attempt to do so. Even if they had tried, it likely would have failed. The injunction itself mentions that the law would likely fail strict scrutiny because the link between harm and social media is not yet settled. Without it, the state would likely be unable to demonstrate a compelling interest, which we already established is necessary to satisfy the requirements of strict scrutiny.
All of this means that California’s age-appropriate design code is likely unconstitutional, which will have significant implications for similar design codes proposed in other states. The fact that the California law has already faced three injunctions involving free speech issues does not bode well for the future of that approach. Continuing down this path is likely just a waste of time and taxpayer resources.
The California age-appropriate design code is rightly in jeopardy. Unresolved first amendment issues and a failure to satisfy the requirements of strict scrutiny are likely to doom the California approach to social media regulation and leave similar laws across the country in jeopardy. Yet advocates continue to push the design code model despite its likely unconstitutionality, leaving taxpayers to foot the bill. It’s time to move on.
Trey Price is a policy analyst with the American Consumer Institute, a nonprofit education and research organization. For more information about the Institute, follow us on X @ConsumerPal.