At Ninth Circuit, California argues against injunction of kids privacy law

(CN) — California urged a Ninth Circuit appeals panel Wednesday to halt a lower court’s decision to block its Age-Appropriate Design Code Act, which aims to protect children’s privacy and safety online.

Deputy Attorney General Kristin Liska told the three-judge panel that companies such as Amazon, Google, Meta and Netflix are subject to enforcement by the state if they knowingly harm children by using their collected data.

“A company is going to be encountering this exception when it wants to do a particular activity that it is otherwise prohibited from doing,” she said.

“I think it’s pretty reasonable to say to companies, ‘Please don’t do things you know will hurt a child.’”

In March 2025, U.S. District Judge Beth Labson Freeman, a Barack Obama appointee, granted a preliminary injunction after internet trade group NetChoice succeeded on the merits of its claims that the statute’s prohibitions and requirements violate the online companies’ expressive rights under the First Amendment of the U.S. Constitution.

The act, which was modeled after a similar United Kingdom law, prevents companies from collecting or selling minors’ data, estimating their age, profiling them for advertising or engaging in “dark patterns” to negatively influence their behavior.

NetChoice attorney David Gossett told the panel the act was a “wolf garbed in sheep’s clothing.”

“The law cannot withstand First Amendment scrutiny, and Judge Freeman appropriately enjoined it,” he said.

U.S. Circuit Judge Milan Smith Jr., a George W. Bush appointee, asked Liska how the panel should understand what content is considered harmful to minors.

“You can have something that causes sleep loss or hurt feelings or so on, and some [other] families, they think it’s wonderful,” Smith Jr. said. “Who’s to judge that?”

Freeman first granted an injunction against the law in September 2023, stating it “likely violates the First Amendment," but the Ninth Circuit was not so generous on appeal.

In a mixed-bag ruling, the Ninth Circuit upheld parts of her original order in August 2024 but vacated the remainder of Freeman’s injunction, ruling that it was unclear from the record whether all elements of the law were unconstitutional.

“The Ninth Circuit has already confirmed what we knew from the outset: California’s speech code is an online censorship mandate,” Paul Taske, NetChoice’s co-director of litigation, said in a statement.

“California cannot force websites to disseminate only the speech it approves of, and it cannot restrict the methods of sharing that speech to match its view of what is ‘best.’”

The case was returned to Freeman in November 2024 to determine if the remaining parts of the act should also be prohibited by an injunction. Freeman granted the injunction, and Attorney General Rob Bonta appealed in April 2025.

NetChoice previously criticized the law for heavy-handedly addressing what other privacy laws, like the Children’s Online Privacy Protection Rule and the California Privacy Rights Act, already do.

“While the state now defends it as a law merely about data management practices, this court has already noted that it is really about the government instructing companies what content they can show to minors,” said Gossett.

U.S. Circuit Judges Anthony Johnstone, a Joe Biden appointee, and Mark Bennett, a Donald Trump appointee, rounded out the panel.

The California Attorney General’s Office did not immediately respond to a request for comment.