Challenge to Maryland’s “Kid Code” Survives Motion to Dismiss–NetChoice v. Brown

November 25, 2025 · by · in Content Regulation

[As I mentioned, I am backlogged on blogging decisions involving state Internet regulations from 2025. This decision gets fast-tracked due to its significance.]

In 2022, California enacted its Age Appropriate Design Code, a segregate-and-suppress law. That triggered a possible California Effect because pro-censorship advocates enthusiastically embraced a new template to push, despite the obvious constitutional and other problems with the template. Hopping onto that censorship bandwagon, Maryland passed a version of the CA AADC it branded as the “Kids Code.” Since then, California’s AADC got sidelined by the predictable/predicted legal challenges. 🤷‍♂️

Consistent with that, yesterday, a district court said that NetChoice’s challenge to Maryland’s Kids Code survived a motion to dismiss. But…despite the signficance of that ruling, the court takes no further action yet to block the law. This leaves the law in a liminal space where the court has explained why the law appears to be potentially illegal censorship, yet it’s still in effect…? 📉

The lengthy (50 pages!) opinion itself is relatively light on the fact analysis. Overall, the opinion quotes a lot of stuff and summarizes with conclusory statements that NetChoice’s allegations are sufficient. Some of the parts that stood out to me:

First Amendment

The court says the “provision of curated content, including editorial decisions, is a form of speech entitled to First Amendment protection.” The court credits these allegations:

NetChoice has alleged that (1) its members engage in protected speech at least to the extent they provide moderated content; and (2) the Kids Code will burden such protected speech by requiring covered entities to make decisions about data collection based on the protected speech it produces….NetChoice has alleged that (1) its members engage in protected speech at least to the extent they provide moderated content; and (2) the Kids Code will burden such protected speech by requiring covered entities to make decisions about data collection based on the protected speech it produces….

NetChoice has sufficiently alleged in Counts I, II, and VI that the Kids Code will require its members who provide services “reasonably likely to be accessed by children” to suppress or alter data collection practices necessary to protected speech—editorialized, moderated, or curated content—to suppress content that is not in the “best interests of children” for all users.

Following the Ninth Circuit’s precedent, the court flags the DPIA requirements:

NetChoice has sufficiently alleged that altering data collection practices will concomitantly alter the services themselves, including protected speech.” In a footnote, the court explains “the Kids Code may require entities who have identified services not in the best interests of children to alter their use of children’s data relative to those services or face the Kids Code’s enforcement provision for intentional violations.

The court authorizes the case to proceed on both facial and as-applied grounds.

Vagueness

The “best interests” standard comes from family law, in which courts evaluate extraordinarily fact-specific circumstances for individual children. Unlike the family law context, however, covered entities allegedly must follow the “best interests of children” standard on a much broader scale. NetChoice has sufficiently alleged that this standard depends on subjective determinations not defined in the Kids Code such that it fails to provide businesses or enforcing officials reasonable, definite standards of practices that meet it….

NetChoice has sufficiently alleged in Count IV that the “reasonably likely to be accessed by children” standard is unconstitutionally vague because it does not provide entities enough information to determine whether they are covered under the Kids Code. In the context of regulations that limit speech, “reasonably likely” standards may be unconstitutionally vague where they depend on ill-defined, subjective determinations of a given outcome’s likelihood…As NetChoice alleges, this standard leaves unclear whether websites must measure “significant number of children” by proportional percentage or by number of child users, even as similar laws in other states have defined “significant number of children” directly in the statute.

COPPA Preemption

NetChoice has sufficiently alleged that the Kids Code is expressly preempted as inconsistent with COPPA to the extent that (1) the statutes cover the same issues; and (2) the Kids Code holds entities liable for activity permissible under COPPA…to the extent that COPPA only imposes liability for activity covered thereunder where websites have “actual knowledge that [they are] collecting personal information from a child” and expressly preempts inconsistent state laws, NetChoice has sufficiently alleged that the Kids Code’s broader “reasonably likely to be accessed by children” standard imposes liability for conduct that would be permissible under COPPA

Section 230 Preemption

NetChoice has sufficiently alleged in Count VIII that Kids Code § 14-4804 and § 14-4806 are expressly or impliedly preempted by Section 230. As an initial matter, it has sufficiently alleged that its members who are covered entities are providers of interactive computer services. Next, it has sufficiently alleged that § 14-4804(b)(4) of the Kids Code requires covered entities to take steps “to comply with the duty to act in a manner consistent with the best interests of children,” which NetChoice has sufficiently alleged could include altering presentation of third-party speech to children. Similarly, NetChoice has sufficiently alleged that § 14-4806 of the Kids Code restricts the use of dark patterns and other data in a manner that may alter which third-party content members offer children and others using their products. At this stage, therefore, NetChoice has sufficiently alleged that § 14-4806 restricts websites’ “exercise of a publisher’s traditional editorial functions—such as deciding whether to publish, withdraw, postpone, or alter [third-party] content” in a manner that plausibly contradicts Section 230. To the extent that websites would then face liability for editorial choices regarding third parties’ content, therefore, the Kids Code may be expressly preempted by Section 230

* * *

I believe CA’s AADC motivated me to create this Travis Kelce meme (a favorite of my Internet Law students):

Your evergreen reminder that just because a law claims to protect kids doesn’t mean that it actually does so.

Case Citation: NetChoice LLC v. Brown, 2025 WL 3267786 (D. Md. Nov. 24, 2025)

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