Judge Likens Social Media to Tobacco in California Law Challenge

A judge for the country’s largest federal appeals court denounced the social media industry’s use of addictive algorithms at an oral argument hearing Wednesday, comparing it to tobacco companies that sought to fend off regulation.

“It might be actually worse than a carcinogen,” said Judge Ryan D. Nelson, who is overseeing the tech industry trade group NetChoice LLC’s legal challenge to a California law restricting children’s access to platforms.

The judge expressed concern that “an entire generation” of children is facing addictive social media behaviors. “There’s a problem here,” said Nelson, who sits on a three-judge panel for the US Court of Appeals for the Ninth Circuit.

NetChoice —which is backed by tech giants including Meta Platforms Inc., Google LLC, X Corp., and Reddit Inc.— is asking the appeals court to fully block the California law, called the Protecting Our Kids from Social Media Addiction Act.

The law, which is paused while the appeal plays out, would prohibit minors from using social media with algorithmically driven “personalized feeds” and would require companies to verify parental consent before allowing minors toaccess the platform, among other restrictions.

NetChoice is appealing an order from a federal district judge in San Jose, Calif., who late last year blocked some parts of the law from taking effect, but said core elements of the law involving restrictions on personalized feeds can remain.

The trade group’s attorney, Scott Keller of Lehotsky Keller Cohn LLP, told the Ninth Circuit Wednesday the US Supreme Court’s First Amendment precedents show that the law is unconstitutional. The high court has held that a previous California law banning the sale of violent video games to children violates minors’ “right to speak or be spoken to,” Keller said.

“We wouldn’t say that government can ban Saturday morning cartoons simply because they think that they’re too addictive,” Keller said. “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...”

“That’s actually addictive,” Nelson said, cutting off Keller. “You sound like the tobacco companies.”

Keller said that social media companies are “absolutely not” like tobacco companies. “We’re taking about fully protected speech,” he said. “We’re not talking about a substance that is a carcinogen.”

Distinguishing Platforms

NetChoice has brought over a dozen lawsuits around the country challenging state laws that regulate social media on First Amendment grounds. The group has been largely successful in winning injunctions against the laws. The Ninth Circuit last year upheld an injunction blocking another California social media law called the Age Appropriate Design Code Act.

Nelson, who was appointed to the Ninth Circuit by President Donald Trump, has previously criticized the tech industry’s power. In a case last year involving Meta, Nelson wrote a concurring opinion asking the Ninth Circuit to revisit the powerful federal law Section 230 of the Communications Decency Act that gives legal immunity to internet platforms.

But at the Wednesday hearing, Nelson also scrutinized how the California law distinguishes platforms that are or aren’t covered. The law exempts certain websites that primarily focus on commercial transactions, such as Ebay Inc., or consumer reviews, such as Yelp Inc.

That appears to be content-based discrimination, which is generally unconstitutional, Nelson said. A “jaded” view is that certain companies lobbied to get exclusions under the law, he said.

“If California had come in and said all feeds, regardless of the nature, are prohibited, I think California would be on a much more solid footing,” he said.

Judges Michael Daly Hawkins and William A. Fletcher were also on the panel hearing the case.

Benbrook Law Group PC also represents NetChoice. The California Attorney General’s Office represents the state.

The case is NetChoice LLC v. Bonta, 9th Cir., No. 25-146, 4/2/25.