As Congress considers competing House and Senate proposals meant to protect kids online, lawmakers have only to look to their states to understand the challenges in seeking to regulate kids' social media usage without running afoul of the First Amendment. States have already tried some of the same strategies Congress is considering, only to see those laws stopped by injunctions granted over free speech objections. At issue in many of the court conflicts over age verification laws is the definition of the social media platforms themselves, with courts determining that by making exceptions for certain websites, states have shown their hand in restricting speech based on its content and the people authoring it. Utah offers an example. Republican state Rep. Jordan Teuscher sponsored a law limiting design features that could cause minors to “have an addiction” to social media. He laid out the difficulty of drawing legislative lines around types of platforms. “If you look at a company like Roblox … is that a social media company?” Teuscher said. “Well, we certainly have seen harm that’s being caused, but they don’t interact in any way like a Facebook does.” Teuscher’s bill was eventually blocked by a preliminary injunction on the basis that its definition made the law a content-based speech restriction. Teuscher acknowledged that similar state laws often meet the same fate. He said he’d like to see congressional action, despite recent verdicts against social media companies. “Whether it’s the legislation or the litigation that has done it, social media companies are putting in more controls and protections for kids, which is a good thing, but it’s not enough,” he said. Kate Ruane, director of the Center for Democracy and Technology’s Free Expression Project, which advocates for speech protections online, said state laws would require age verification to access protected speech. “That is, in and of itself, a pretty big First Amendment problem, based on previous First Amendment cases, because it creates such a gigantic burden on access to constitutionally protected speech,” she said. While many state laws require age verification by platforms, others require it at the app store level. The Supreme Court recently declined to intervene in the case of a Texas app store age law. That law remains in effect as it is considered by the district court. The House in June passed the bipartisan bill known as the Kids Internet and Digital Safety Act, or KIDS Act, which would require online platforms to put in place “reasonable policies” to address certain harms to kids online. The House bill is a rival to a bipartisan Senate measure yet to be taken up, titled the Kids Online Safety Act, which would put a stronger “duty of care” on social media platforms to prevent harm to kids. [Related: Kids online safety push clouded by House-Senate divide] States' attempts Ruane said the two main congressional proposals are “in conversation” with state laws and bring up the same First Amendment questions. “Everything from the state laws shows up in either the KIDS Act or the Senate version of KOSA,” Ruane said, except for a full ban for kids on social media without parental consent. At a December hearing on an earlier version of the House legislation, Rep. Gus Bilirakis, R-Fla., said the committee was aware that state laws “with good intentions” had been struck down on free speech grounds. “We are learning from those experiences, because a law that gets struck down in court does not protect a child,” he said. Ruane said the KIDS Act’s requirements for “reasonable policies” are an attempt to respond to court decisions. The Senate bill, commonly referred to as KOSA, says that “covered platform” means an “online platform, online video game, messaging application, or video streaming service that connects to the internet and that is used, or is reasonably likely to be used, by a minor.” But the definition makes exceptions, including for email and texting, as well as for news and sports sites whose video content is “related to the website or app’s own gathering, reporting, or publishing” of news or sports. Laws in Arkansas, Georgia, Louisiana, Nebraska and Virginia have all been struck down, in part based on similar definitions. Common exceptions include career development, online shopping, gaming and sites with non-user-generated content. Content-based carve-outs can reveal an intent to regulate particular big-name social media companies, Ruane said. “That could be one way that states wind up kind of revealing that these laws are really about sites that engage in particular kinds of conversations or particular types of content,” she said. To courts, these exceptions frequently look like content- or speaker-based restrictions on speech, which make a law subject to a higher level of First Amendment scrutiny. In issuing a preliminary injunction against Georgia’s law, a federal district court wrote, “The Act’s exhaustive list of exemptions — which, under this Court’s plain reading, would exempt everything from The Atlanta Journal-Constitution to Barstool Sports to Discord” showed that implementing the law required considering content. A federal district court in Arkansas made similar objections to that state’s law, adding that an exception for non-user-generated content was a speaker-based distinction. “This privileges institutional content creators — movie and TV studios, mainstream media outlets, and traditional journalists — over the Soundcloud artist, the TikTok chef, and the citizen journalist,” that court wrote. Eric Goldman, a professor at Santa Clara Law School focused on technology and internet law, highlighted the censorial impact of age minimums on social media. “A ban on social media usage is both a restriction on consuming content, but it's also a restriction on sharing content,” Goldman said. “And that's censorship,” he added. The House bill doesn’t make carveouts for platforms dedicated to career development or news. Instead, it defines covered platforms based on the use of design features to promote engagement and of personal information to make content recommendations. The bill focuses on platforms whose “primary purpose” is to facilitate “the sharing and access to user-generated content,” which could draw the same speaker-based concern as the Arkansas law. Goldman said he disagrees with the premise of state social media laws and the ones moving through Congress: that social media is always harmful for children. He said that premise leads to “categorical regulatory errors.” “Efforts to restrict children from using social media might benefit some children and almost certainly will hurt other children,” Goldman said. Parental consent Content and speaker-based restrictions on speech trigger strict First Amendment scrutiny, a legal standard under which a law can only be constitutional if it serves a compelling government interest and is narrowly tailored. At the state level, courts have generally found that bills requiring parental consent to access social media don’t meet that standard, including in Arkansas, Georgia, Louisiana, Nebraska and Virginia. A federal district judge in Louisiana said that under the state’s law, one-time parental consent could give a minor access to even harmful content on a site, while lacking consent would block access to helpful speech. “He will not be able to seek homework help from a forum dedicated to mathematics,” the court wrote. Some courts have also determined that parental consent is not the least restrictive means of protecting kids. In Virginia, the state told a district court that existing parental controls online aren’t sufficient because parents weren’t using them. The court determined that, “Virginia could work with companies and launch advertising campaigns to ensure parents know how to use the current tools effectively.” But not all courts agree that these types of laws are subject to, and fail to survive, strict scrutiny. In Florida, a district court ruled against the state law, determining that it did not survive intermediate scrutiny, a lower standard. An appeals court, on a 2-1 decision, agreed with the district court that the Florida law was not content-based, but disagreed on the tailoring of the law. The majority wrote that the state had tailored the law based on age, banning accounts for kids under 13 and requiring parental consent at 14 and 15. A similar process played out in Ohio, where the district and appeals courts agreed that the law was content-based. While the district court found the law to be too broad, the appeals court ruled, on a 2-1 decision, that Ohio’s law survived strict scrutiny because the parental consent requirement was a “marginal burden.” “Parental consent will not always be narrowly tailored to the compelling interest in protecting minors’ wellbeing,” the opinion said, adding that lack of supervision was part of the problem. Experts say state social media laws are likely to end up before the Supreme Court. Goldman said that while the court has ruled on age verification for online pornography, the decision was inconsistent on the criteria for allowing age verification and gave few clues to how the court could rule in the future. “As a result, legislatures are steaming ahead without any concern about the constitutional limits, and they're expecting the Supreme Court to answer that question at some point in the future,” he said.
