A federal court last week in NetChoice v. Reyes preliminarily blocked enforcement of a Utah law for likely violating the First Amendment speech rights of social media companies “to collage user-generated speech into their ‘own distinctive compilation[s] of expression.’” While acknowledging the state’s “earnest desire to protect” the minors’ mental health and privacy interests, US District Judge Robert J. Shelbydeemed the law a content-based restriction on speech that probably wouldn’t survive the rigorous strict scrutinystandard of review.
Utah’s law applies only to “social media service[s]” that “allow users to interact socially with each other,” not to websites that simply present content like news, sports, and entertainment. That’s a pivotal distinction because it makes the law content-based (and thus subject to strict scrutiny) by distinguishing between what Shelby called “‘social speech’ and other forms of speech.”
Under the law, companies operating social media services must (1) implement age-verification requirements to determine if account holders are minors; (2) set stringent default privacy settings on minors’ accounts limiting their access to (and ability to share) content; and (3) disable “features that prolong user engagement” such as push notifications. The privacy settings can be changed by minors only after “obtaining verifiable parental consent.”
If this seems familiar, it’s likely because––as NetChoice stated in a press release following the Reyes decision––it marks “the sixth court ruling demonstrating yet again that these types of state laws clearly violate the First Amendment, parental rights and data security.” While these measures are well intended, the outcomes should give lawmakers pause to consider whether voluntary efforts and educational programs for minors and parents might more efficiently and effectively accomplish their goals.
Meanwhile, laudable voluntary efforts to safeguard minors that entail measures similar to some of those Utah lawmakers’ want are occurring. As the Wall Street Journal reported on September 17, Meta’s Instagram platform now is “automatically making youth accounts private, with the most restrictive settings. And younger teens won’t be able to get around it by changing settings or creating adult accounts with fake birth dates.” Meta’s press release proclaimed, “We’re reimagining our apps for teens with new Teen Accounts. This new experience is designed to better support parents, and give them peace of mind that their teens are safe with the right protections in place.”
This certainly beats flawed legislation. As I’ve written before, “Shoddy draftsmanship of any kind serves no function in the long run, clogging courts with cases and squandering taxpayers’ money on defense costs.” Furthermore, what some lawmakers may not realize is that when a plaintiff prevails in a federal civil rights lawsuit against a state official for violating the First Amendment, a federal statute allows courts to award the prevailing party “a reasonable attorney’s fee.” In other words, taxpayers may pick up two legal tabs––the government’s bill and part of the plaintiff’s.
If lawmakers insist on adopting statutes, however, then they should first consider devoting serious time to (1) understanding the difference between a content-based and content-neutral law and how that distinction affects the level of judicial scrutiny to which a statute is subject; (2) reading the US Supreme Court’s 2024 majority opinion by Justice Elena Kagan in Moody v. NetChoice recognizing the First Amendment editorial rights of prototypical social media platforms (i.e., YouTube’s homepage and Facebook’s News Feed) to curate and present content as they see fit; and (3) reviewing the Court’s 2011 ruling in Brown v. Entertainment Merchants Association striking down a California law limiting minors’ ability to access violent video games.
The Brown decision is one my colleague Daniel Lyons has addressed and one I’ve previously examined. Akin to what they used to say in movie commercials, “If you read just one Supreme Court decision this year, make it Brown v. Entertainment Merchants Association.” There’s tons for lawmakers to learn in Brown: (1) the First Amendment speech rights of minors, (2) the strict scrutiny test, (3) the requirement for the government to prove a direct causal link between regulated speech and harm (a mere correlation won’t pass judicial review), (4) problems with laws being underinclusive(doing too little to truly address a problem) and overinclusive (sweeping up more speech than is necessary to deal with alleged harms); and (5) the need for lawmakers to consider whether there are alternative methods of serving their interests that restrict less speech.
Brown was repeatedly cited by Judge Shelby in Reyes. One example: He observed that Utah had “not provided evidence establishing a clear, causal relationship between minors’ social media use and negative mental health impacts.” Without such proof, the government lacks a compelling interest necessary for surviving strict scrutiny.
In sum, voluntary efforts like Instagram’s are the right way to go, but if lawmakers want to regulate online businesses, their homework assignment described here awaits.
Learn more: Paying Off the Watchdog: Why California’s Funding of Journalism Is Wrong | Compelling Speech, Compelling Censorship: California’s Misguided Effort to Protect Minors | Zuckerberg’s Letter to Jordan: Headline Grabbing, Legally Insignificant | Social Media Platforms and Justice Thomas’s Tenacity on Compelled Disclosures and Common Carriers