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˛ÝÝ®ĘÓƵAPPąŮÍř statement on age-based restrictions on social media access
Lawmakers across the country are advancing legislation intended to protect minors from harms allegedly caused by social media use.
A bipartisan group of United States senators, for example, has introduced the “,” which would ban users under the age of 13 from accessing social media platforms and require parental consent for users between the ages of 13 and 18. California’s “,” enacted last September, compels online services to redesign their sites to be “appropriate for children,” as defined by the state. And earlier this year, Utah passed into law the “,” which requires those below 18 to obtain parental consent before creating a social media account.
To be sure, the government has an interest in protecting children from harm. And the purported correlation between social media use and negative consequences for the mental health of our nation’s youth has sparked intense study and debate. Declaring these open questions settled, however, lawmakers have rushed headlong toward restricting protected expression as a first response rather than as a last resort. But the First Amendment prohibits the government from swinging an ax when a scalpel might suffice.
First things first: What happens on social media is speech
Users post text, images, sound, and video on social media. They read, view, listen, and watch the posts of others. That’s all expressive activity. Absent a post falling under one of the narrow categorical exceptions to the First Amendment — a true threat, for example — it’s protected expression, and the government can’t restrict it without surviving the applicable level of constitutional scrutiny. Social media platforms also have their own First Amendment rights as private entities, including the right to disseminate lawful speech as they see fit. They also have the right to regulate the speech users post on their sites in ways that go beyond what the First Amendment permits the government to do.
When the government regulates expression to address the harms allegedly posed by certain content — here, speech minors may encounter on social media — the measures it takes must satisfy strict scrutiny.
Social media feels different to all of us because it’s new. But so was the printing press. Radio felt different to folks in the 1920s and ’30s; movies felt different to folks in the 1940s and ’50s; and video games felt different to folks in the 1990s and 2000s. At its core, just like those predecessors, social media is speech. The fact that social media is “interactive” doesn’t take it beyond the First Amendment’s protection anymore than it does for equally interactive video games. (Or for literature, which is “interactive” in its particular way, too, as Judge Richard Posner by comparison in striking down a ban on violent video games.)
The First Amendment protects the rights of kids and young adults, too
Kids don’t have to wait until they’re 18 to benefit from the First Amendment’s protections. Young people have strong First Amendment rights. Those rights may be qualified in certain circumstances — for example, public grade school students can’t engage in speech that substantially disrupts school operations when they’re in school. But on their own time outside of school, kids can speak their minds like everyone else.
In decisions spanning decades, the Supreme Court of the United States has made clear “minors are entitled to a significant measure of First Amendment protection, and only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to them.”
That was the Court’s holding nearly 50 years ago in Erznoznik v. City of Jacksonville, a 1975 case involving restrictions on drive-in theaters. It was resoundingly reaffirmed by 2011’s Brown v. Entertainment Merchants Association, in which the Court struck down a California law prohibiting the sale or rental of “violent video games” to those under 18. Writing for the majority, Justice Antonin Scalia recognized that while the government “possesses legitimate power to protect children from harm,” it does not wield “a free-floating power to restrict the ideas to which children may be exposed.”
The bottom line is that the government can’t usurp parental authority and ban kids from social media without demonstrating that a broad ban is the only way to protect them from real harm.
In fact, the Court has said that only one type of speech protected for adults may be restricted for children: depictions of sex that meet the legal test for obscenity, but tailored to minors. That’s a necessarily high bar: It means that the material, taken as a whole, must lack serious literary, artistic, political, or scientific value for kids to be restricted.
It’s up to parents, not the government, to decide how and if their kids engage with social media and the world of ideas. If the government had unchecked power to control what information children could access, government officials would usurp parental imperatives and inevitably abuse that power to advance ideological agendas. And it’s important to remember that for many kids, social media provides a powerful and positive way to connect with friends, family, and the larger world.
Banning minors from those kinds of interpersonal networks would not only violate their right to free expression, it would teach them the First Amendment doesn’t really mean what it says and that the government knows best. That’s a dangerous lesson for the next generation of Americans to learn.
Social media bans can’t satisfy strict scrutiny
Because social media platforms host speech, and because the First Amendment protects kids, too, the government can’t simply ban kids from social media just because they’re not 18 yet — not without satisfying a heightened level of judicial review known as “strict scrutiny.”
When the government regulates expression to address the harms allegedly posed by certain content — here, speech minors may encounter on social media — the measures it takes must satisfy strict scrutiny. To survive judicial review, content-based legislation must be narrowly tailored in service of a compelling governmental interest. Lawmakers must demonstrate the existence of a real problem and prove that restricting speech is necessary to solve it. And if less restrictive alternatives are available, those must be used instead.
The broad prohibitions on access to social media that lawmakers have proposed and passed cannot withstand strict scrutiny. Most centrally, they aren’t narrowly tailored to serve the government’s interest in protecting kids. After all, there’s nothing “narrow” about banning an entire class of users from accessing protected speech. And because we simply do not yet fully understand the precise nature of any potential contribution by social media to possible mental health harms, lawmakers do not — and cannot — identify the clear problem allegedly presented by social media use, let alone prove that banning social media access is necessary to solve it and that other, less restrictive means of addressing alleged harms won’t cut it.
And there are plenty of other measures to be tried by parents, platforms, and the government before the state swings the ax and bans kids from social media outright. Platforms can refine the tools they make available for parental oversight of minors’ accounts, publicize their availability, and educate parents on how to use them. Speaking of education, parents and teachers can educate kids about how to navigate social media. And researchers and social scientists can continue to study how kids use social media and what impact it may have on their lives.
Until measures like those are proven ineffective, and until we understand with greater clarity the scope, scale, and nature of any potential harm social media poses to kids, bills and laws that condition access to social media on the basis of age can’t satisfy strict scrutiny. That means they violate the First Amendment.
The bottom line: Government intervention is the nuclear option
There’s a reason strict scrutiny is so exacting: Granting legislators the power to restrict speech is dangerous. The Framers knew as much, and ratified the First Amendment as protection against the threat of unchecked government power to decide what each of us may say and hear.
A state-imposed ban may seem attractively easy compared to the effort seemingly required by other, more speech-protective measures. But as the Supreme Court emphasized in 2000’s United States v. Playboy Entertainment Group, “the objective of shielding children does not suffice to support a blanket ban if the protection can be accomplished by a less restrictive alternative.” Allowing the government to simply ban kids means parents and platforms don’t have to do the work of navigating this new media.
And what about the kids whose parents do let them use social media? They’d be silenced and shut out by a blanket ban. Grown-ups would suffer, too. Age verification — to the extent it’s even — raises serious privacy concerns, intrudes on anonymous comment and access to information, and imposes additional burdens on adults who just want to log on.
The bottom line is that the government can’t usurp parental authority and ban kids from social media without demonstrating that a broad ban is the only way to protect them from real harm.
And that’s a bar the government cannot meet.