BALTIMORE—NetChoice, a trade group representing tech companies, has sued the state of Maryland over the Maryland Age-Appropriate Design Code. The lawsuit, filed Monday in the U.S. District Court for the District of Maryland, maintains that the state is violating the First Amendment rights of online users by making it an unconstitutional speech code.
The case is NetChoice v. Brown. Maryland Attorney General Anthony G. Brown, a Democrat, is named in the federal lawsuit representing the state of Maryland.
“Rather than restricting speech, risking cybersecurity, and replacing parents, Maryland lawmakers should focus on meaningful and legal solutions, such as enforcing existing laws against online predators, increasing law enforcement resources, and promoting parental education on digital safety tools,” explains Chris Marchese, litigation director.
“The Maryland Speech Code is about government overreach, censorship, and undermining personal freedoms—while doing nothing to meaningfully enhance online safety."
Maryland Age-Appropriate Design Code is similar to the California Age-Appropriate Design Code, which is partly blocked by the U.S. Ninth Circuit Court of Appeals.
As AVN previously reported, the Ninth Circuit sided with NetChoice in the California case by indicating that a requirement to “opine on and mitigate the risk that children may be exposed to harmful or potentially harmful materials online facially violates the First Amendment.”
Since the California code does this, it allegedly imposes a substantial burden on free speech by inadvertently deputizing businesses “into serving as censors for the state." In the Maryland lawsuit, counsel for NetChoice point back to the California code and its First Amendment issues.
"Maryland’s approach is just as restrictive—and unconstitutional—in both scope and effect as the law at issue in [California],” reads the NetChoice Maryland lawsuit.
"The [code's] fundamental flaw is its central command: requiring websites to analyze and restrict protected expressive content based on whether state officials might later determine such restriction would serve the 'best interests of children'—an inherently subjective standard."
Supporters of the Maryland code say that they view their measure as “optimized" compared to California’s code.
Experts for the Future of Privacy Forum noted in a May 2024 blog post that “Maryland is pioneering this new 'AADC 2.0’ framework, stakeholders should be on high alert for new legal challenges and the potential for other states to consider and iterate upon this approach.”
The Verge additionally reports that NetChoice has remained on the side of trade groups, like the Free Speech Coalition, in pornography age verification litigation.
One such case is Free Speech Coalition et al. v. Paxton, which is pending a decision at the U.S. Supreme Court. Despite the support, Marchese explained that any current litigation is not related to the challenge at the high court between the state of Texas and adult industry stakeholders led by the Free Speech Coalition trade group.
"NetChoice and our industry fully agree that minors need to be protected online,” explained Marchese via The Verge. “But ultimately, we don’t achieve that outcome by passing unconstitutional bills into unconstitutional laws. An unconstitutional law protects no one, especially minors.”
