Section 230 and the First Amendment: Challenging Age Discrimination Claims in Ad Targeting

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A California superior court has allowed age discrimination claims under the state’s Unruh Civil Rights Act to proceed against Google, according to filings and analysis from the Copia Institute. The legal action centers on allegations that certain users did not receive specific advertisements based on their age.

Facebook. In that prior dispute, the court permitted age discrimination claims under the Unruh Act to move forward because ads were not served to users of particular ages. According to the Copia Institute, applying anti-discrimination statutes to advertisements is a flawed application of the law, since ads constitute expression rather than the underlying goods and services governed by the statute.

Legal Precedents and Constitutional Protections

For more than a century, American media has relied on an advertising model enabling brands to target audiences by demographic factors like age. The Copia Institute warned that exposing this ecosystem to legal liability threatens the broader media landscape. Although the organization previously submitted an amicus letter urging the California Supreme Court to review the Liapes decision, the court declined to take up the case, leaving the ruling active and enabling subsequent challenges.

In response to the Google superior court decision, the Copia Institute filed an updated amicus submission this week. The submission highlights that the First Amendment protects the choices speakers make when directing expression to audiences. Furthermore, the brief argues that Section 230 of the Communications Decency Act protects internet platforms from liability regarding third-party content they intermediate, including advertising material generated by outside entities.

Contradictory State Mandates

The Copia Institute’s latest filing points out an additional constitutional issue involving editorial discretion and conflicting state policies. State actors frequently disagree on how speech should be directed, and the First Amendment is designed to shield expressive entities from being caught in such regulatory tug-of-wars.

This conflict is evident within the state of California itself. While the Unruh Act has been interpreted by courts to suggest that refusing to provide certain speech based on age may be illegal, the state has simultaneously enacted new laws requiring platforms to do precisely that by restricting certain content based on age.

Both laws are unconstitutional, and this conflict illustrates why the First Amendment must protect the expressive choices about whom to provide what expression to from any such governmental meddling.

Copia Institute