California courts keep pinning ad-targeting discrimination claims on the platform, not the ad buyer

A California superior court has allowed Unruh Act discrimination claims to go forward against Google on the theory that certain users were not served all the ads they would have liked to see, and Google has appealed ^[4]. The Copia Institute filed an updated amicus submission this week backing that appeal ^[5]. For anyone who ships ad delivery, the consequence is that the targeting machinery, not the advertiser using it, ends up named in the complaint.

The precedent is Liapes v. Facebook, in which a California appeals court a few years ago allowed age discrimination claims under the state's Unruh Act arising from ads not being served to users of certain ages ^[1]. The Copia Institute asked the California Supreme Court to review that decision; the court declined, and Liapes stayed on the books ^[2][3]. According to Techdirt, the superior court in the Google matter has now followed it ^[4].

The allocation of exposure is the part worth reading closely. Liapes was not a suit against the advertiser that chose to target certain potential customers, but against Facebook, which was intermediating ad content generated by third parties ^[7]. Taken with the Google case, both instances of this theory described in the source put the platform in the defendant's chair rather than the buyer who set the audience parameters ^[12]. An advertiser can pick an age band in a self-serve tool and move on; the party that has to answer for who did not see the ad is the one that built the tool and ran the delivery.

Copia's argument is that the First Amendment protects the choices speakers make about how to direct their expression to audiences, and that even setting that aside, Section 230 protects platforms handling expression provided by others from defects in that expression, including that it might violate state anti-discrimination law ^[6]. Techdirt further contends that ads are expression rather than the goods and services the Unruh Act governs, and that demographic targeting, age included, has funded American media for more than a century ^[8][9]. Those are the filer's positions, and by Techdirt's account the superior court set aside that statutory and constitutional argument entirely ^[14]. Read the source with that in mind: the Techdirt write-up describes the Copia filing in the first person, so the publisher and the amicus are the same interest ^[13].

The conflict Copia raises this round is the most operationally awkward piece. California has one law that courts have read to make refusing to provide speech on the basis of age potentially illegal, while the same state has been passing laws requiring platforms to refuse to serve certain expression based on age ^[10]. Copia's stated position is that both laws are unconstitutional ^[11]. A team building age-based suppression to satisfy one statute is generating documentation for a claim under the other, and no product decision resolves that; only a court does.

Watch whether the appeals court diverges from Liapes, since a split between two California appellate districts is the kind of thing that gets the state Supreme Court to take a second look after passing once ^[3]. Watch also whether plaintiffs continue to file against serving platforms rather than the advertisers choosing the audiences, because that is what determines who is funding the defense ^[12].