California has sought in recent years to take the lead in protecting children from online harms, but the state’s proposed legislative solutions have repeatedly been held up in courts. Assembly Bill 1064, which is currently on Gov. Gavin Newsom’s desk after clearing both the state Senate and Assembly, appears destined for the same fate.
The 9th U.S. Circuit Court of Appeals ruled last year in NetChoice v. Bonta to affirm a federal district court’s preliminary injunction against the California Age-Appropriate Design Code Act (CAADC) on grounds that it likely violates the First Amendment. For many of the same reasons, AB 1064 is likely to fail court scrutiny as well.
The CAADC would have required businesses that offered online products or services likely to be accessed by children to report any risk of “material detriment to children that arise from the data management practices of the business.” The law also required such businesses to document their plans to mitigate or eliminate those risks before the product or service in question could be accessed by children.
The 9th Circuit found these provisions would essentially deputize businesses “into censoring speech based on its content.” The court found such restrictions are subject to strict scrutiny under the First Amendment, and that they are not the least-restrictive means to protect children.
AB 1064, also known as the LEAD for Kids Act, attempts to do much the same thing, only through direct government action. It would prohibit chatbots based on perceived speech harms associated with children’s use of them, including vague notions of “[o]ffering mental health therapy” and “[p]rioritizing validation of the user’s beliefs, preferences, or desires over factual accuracy or the child’s safety.” For instance, it isn’t clear whether AB 1064 would prohibit chatbots from encouraging troubled users to seek mental health help or giving them further resources. AB 1064 would create a new source of potential liability for chatbots that would likely lead to age-gating minors and thus excluding them from accessing a great deal of legally protected speech.
While the bill’s drafters clearly are concerned about potential harms arising from AI chatbots, this is not the least-restrictive means to protect children from harms associated with those products. Instead of taking steps to prohibit children from accessing chatbots because of possible harms associated with them, California could follow the court’s recommendations in the NetChoice decision to create incentives for companies to offer voluntary content filters or application blockers, educate children and parents about the importance of such tools, and otherwise rely on existing criminal laws that prohibit related unlawful conduct. Such measures would allow concerned parents to avoid the harms of chatbots without restricting the benefits of chatbots to others.
The California State Legislature is right to want to protect children from online harms, but bills that will not survive First Amendment scrutiny does not accomplish that worthy goal. Real leadership requires solutions that are constitutional. The LEAD for Kids Act fails to lead in the right direction.