Tech companies ask to block California law restricting personalized feeds for minors

SAN JOSE, Calif. (CN) — A handful of tech giants fought on Wednesday to bar a California law they say violates their First Amendment rights by blocking minors from accessing personalized social media feeds.

TikTok, Meta Platforms and Google, along with its subsidiary YouTube, claim in a series of related federal civil cases that Senate Bill 976, known as the Protecting Our Kids from Social Media Addiction Act, unlawfully blocks the companies from making editorial judgments on what goes into its recommended and personalized feeds.

Arguing for a preliminary injunction, they say restricting recommended content — both the human decisions on what to put on their social media feeds and the algorithms that determine what users see when they scroll — regulates protected expression and imposes unconstitutional burdens on First Amendment-protected actions.

YouTube attorney Elizabeth Prelogar, a former solicitor general under the Biden administration, said the algorithms and decisions involved in recommending videos or organizing a 13-year-old’s feed to reflect her most viewed content based on engagement is part and parcel to content moderation, and cannot be parsed.

“Humans have a tight, close connection and link to how the outputs match up with the inputs and the system is functioning to match the editorial goals,” she said.

Prelogar said personalized feeds are especially important for minors to recommend new, interesting and age-appropriate content, and are how — through user signals, subject and viewership — the online platforms will know what to recommend based on if a user is a teenager or a child under 13 years-old.

But U.S. District Judge Edward Davila said he was concerned about artificial intelligence’s role in creating the recommendations and ultimately curating feeds that may be inappropriate or harmful to minors.

Davila, a Barack Obama appointee, was curious at what point machines took over the curation of feeds from humans.

Prelogar pushed back on the narrative that engineers or other decision-makers stop having a touchpoint to the feeds at any point of the process, and that the “black box” of the algorithm may make the feeds unpredictable, optimizing the personalization in a way that is unknown to the people that trained it.

“It is simply incorrect to say it is wholly inexplicable and beyond human comprehension,” she said.

But California Deputy Attorney General Shiwon Choe argued the platforms’ algorithms “fill in the blank” without human direction and without “actually understanding the content or messages” that are selected, aiming for increased engagement — and more viewership of ads and therefore more money for the platforms.

California contends the unknowability of algorithms’ recommendations create harm. Choe gave an example of a minor girl going unconscious after choking herself because of a “blackout challenge,” a social media trend of filming a participant experiencing asphyxiation and sharing the content, based on recommended videos in her feed.

Choe said secondary harms of optimizing engagement through personalization, regardless of the content viewed, include sleep deprivation, decreased attention at school and other mental health effects.

The algorithm is just number crunching based on millions of datapoints, Choe said, and the humans aren’t making the decisions on what is recommended in personalized feeds.

Meta attorney Mark Mosier and Prelogar said Davila should apply strict scrutiny to evaluate the balancing of harms between the law the restricting First Amendment protected speech rights and the harms created by teens and minors viewing social media feeds.

The online platforms argued a less restrictive alternative to the law was available, including modifications and parental controls that they hope California would advocate for, instead of blocking personalization.

Davila said he was looking forward to additional briefing and took the case under submission.

In their arguments, the social media giants relied heavily on the landmark 2024 Supreme Court ruling in Moody v. NetChoice**LLC, where the high court determined that online platforms content moderation decisions have First Amendments protections.

And NetChoice — an internet trade association with members including social media companies — even attempted in 2024 to stop California from enforcing the law. The Ninth Circuit ultimately held that NetChoice lacked associational standing to challenge the law’s personalized-feed provisions.