Megan Iorio
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meganiorio.bsky.social
Megan Iorio
@meganiorio.bsky.social
130 followers 350 following 70 posts
Senior Counsel @EPIC.org focusing on platform governance & accountability
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meganiorio.bsky.social
This is such brazen censorship. It’s all right there in the open, a quintessential jawboning case, the lawsuit writes itself.
September 18, 2025 at 3:24 AM
meganiorio.bsky.social
The Ninth Circuit has enjoined California's law regulating addictive feeds pending appeal. No opinion attached. Merits briefing in the appeal will proceed on an expedited schedule (completed by mid-to-late March) and hopefully we won't have to wait too long for the Ninth Circuit to rule thereafter.
January 29, 2025 at 8:51 PM
meganiorio.bsky.social
NetChoice does of course assert that all aspects of feeds are expressive because they involve selecting & prioritizing content, but it's the same exact non-argument from the district court, so no news there. bsky.app/profile/mega...
Regardless, the district court erred in holding that, “[w]hen it comes to feeds that recommend posts based solely on prior user activity, there is no apparent message being conveyed.” Ex. A 19. Displaying speech based on user preference is a protected editorial “choice[] about what third-party speech to display and how to display it.” Moody, 603 U.S. at 716. “[I]t is hardly unusual for publications to print matter that will please their sub- scribers.” Reuber v. Food Chem. News, Inc., 925 F.2d 703, 716 (4th Cir. 1991) (en banc).
January 6, 2025 at 9:09 PM
meganiorio.bsky.social
NetChoice's primary argument now seems to be that courts should evaluate the expressiveness of feeds as a whole: as long as the feed has some expressive element, the feed as a whole is expressive, & any regulation of any aspect of the feed is a regulation of expression.
Websites like those covered by SB976 receive First Amendment protec- tion because their “personalized” or “individualized” feeds are “expres- sive.” Id. at 734. That includes when they use “algorithms” to implement their editorial policies, even if “most often” websites display speech based on a “user’s expressed interests”: [W]henever a user signs on, Facebook delivers a personalized collec- tion of those stories. Similarly for YouTube.... And any person opening the website or mobile app receives an individualized list of video recommendations. The key to the scheme is prioritization of content, achieved through the use of algorithms. Of the billions of posts or videos (plus advertisements) that could wind up on a user’s customized feed or recommendations list, only the tiniest fraction do. The selection and ranking is most often based on a user’s expressed in- terests and past activities. But it may also be based on more general features of the communication or its creator. . . . The platforms write algorithms to implement th[eir community] standards—for example, to prefer content deemed particularly trustworthy. This error infected the Court’s refusal to enjoin SB976’s personalized- feeds restrictions as to other members too. The district court assumed that the facial challenge was no different from the as-applied challenge. Ex. A 31- 32. But the as-applied challenge necessarily implicates NetChoice’s record evidence about its members. This evidence shows that covered NetChoice members do not display content to users based “solely” on “how users act online.” Moody, 603 U.S. at 736 n.5. Rather, covered NetChoice members dis- play content in feeds according to their own editorial policies developed by humans, which include efforts to “prioritize minor safety and display only age-appropriate content.” Ex. C ¶ 8; id. ¶ 23 (detailing content-moderation efforts); e.g., Ex. D ¶¶ 12, 21, 24-30, 34-35; Ex. E ¶ ¶ 38, 41-43, 45-48. Defend- ant did not refute this evidence, nor could he have: NetChoice members make their policies publicly available. Ex. C ¶ 23. The district court’s sugges- tions that the factual record is insufficient (e.g., Ex. A 18-19 & n.4) was there- fore both incorrect and seems to improperly require a merits-level factual showing. See Feldman v. Ariz. Sec'y of State's Off., 843 F.3d 366, 403 (9th Cir. NetChoice members’ use of “algorithms” to implement human-created editorial policies is exactly what Moody held the First Amendment protects. Moody, 603 U.S. at 734-35. And that includes using “algorithms” that imple- ment editorial policies even if the “selection and ranking is most often based on a user’s expressed interests and past activities.” Id. So although the dis- trict court correctly recognized that “an algorithm designed to convey a mes- sage can be expressive,” it erred by not concluding the same is true whether the algorithm was created to “recommend[] interesting posts” or to “max- imize engagement,” Ex. A 20, or be a “mixed” feed—as the court hypothe- sized, Ex. A 21.
January 6, 2025 at 9:09 PM
meganiorio.bsky.social
Well, it was a good two days—district court places California’s addictive feed law on hold through Feb 2 pending appellate proceedings.
F or these reasons, the Court finds that an injunction pending appeal is appropriate to allow the opportunity for appellate review of theseweighty issues before the law goes into effect. However, Defendant also has a countervailing interest in seeing a duly enacted law(at least, the parts of which this Court has already concluded are likely constitutional)go into effect. Therefore, the Court concludes that an injunction pending appeal is only appropriate to the extent it allows the Ninth Circuit time toconsider whether to grant its own injunction pending appeal. Accordingly, the CourtGRANTSIN PART NetChoice’s motion. Defendant is ENJOINEDfrom enforcing the entirety of SB 976 for thirty (30) days until February 1, 2025 at 11:59 p.m. PT. At that time, if the Ninth Circuit has not extended this injunction pending appeal or issued its own, this injunction shall dissolve and the more limited injunction issued in the Court’s preliminary injunction order (ECF No. 39) shall take effect
January 3, 2025 at 8:25 PM
meganiorio.bsky.social
NetChoice does not even attempt a coherent argument in support of the expressiveness of behavioral curation, merely misconstruing the guidance from Moody yet again & citing one out-of-circuit decision about print media, not behavioral curation.
Regardless, the Court erred in holding that “[w]hen it comes to feeds that recommend posts based solely on prior user activity, there is no apparent message being conveyed.” ECF 39 at 19. Displaying speech based on user preference is an editorial “choice[] about what third-party speech to display and how to display it,” so it should be fully protected by the First Amendment. Moody, 603 U.S. at 716. After all, “it is hardly unusual for publications to print matter that will please their subscribers,” and this does not vitiate free-speech rights. Reuber v. Food Chem. News, Inc., 925 F.2d 703, 716 (4th Cir. 1991) (en banc).
January 1, 2025 at 9:54 PM
meganiorio.bsky.social
In fact, the passage says the OPPOSITE of what NC claims—it juxtaposes personalized aspects of feeds (curation "based on a user’s expressed interests & past activities") w/ aspects the Court ultimately finds expressive (curation "based on more general features of the communication or its creator")
The selection and ranking is most often based on a user’s ex- pressed interests and past activities. But it may also be based on more general features of the communication or its creator. Facebook’s Community Standards and YouTube’s Com- munity Guidelines detail the messages and videos that the platforms disfavor.
January 1, 2025 at 9:54 PM
meganiorio.bsky.social
This passage from Moody is NetChoice's primary support for its interpretation. The Court is simply recounting facts about aspects of YouTube & FB's feeds. Nowhere does it say that "personalized" feeds are expressive.
And whenever a user signs on, Facebook delivers a personalized collection of those stories. Similarly for YouTube. . . . And any person opening the website or mobile app receives an individualized list of video recommendations. The key to the scheme is prioritization of content, achieved through the use of algorithms. Of the billions of posts or videos (plus advertisements) that could wind up on a user’s customized feed or recommendations list, only the tiniest fraction do. The selection and ranking is most often based on a user’s ex- pressed interests and past activities. But it may also be based on more general features of the communication or its creator. Facebook’s Community Standards and YouTube’s Com- munity Guidelines detail the messages and videos that the platforms disfavor. The plat- forms write algorithms to implement those standards—for example, to prefer content deemed particularly trustworthy or to suppress content viewed as deceptive (like videos promoting “conspiracy theor[ies]”). Moody, 603 U.S. at 734-35 (emphases added).
January 1, 2025 at 9:54 PM