Social media platforms aren’t cigarettes. They convey much speech that’s fully protected by the First Amendment while cigarettes transmit none. Social media platforms deliver words, images, and sounds for informational, educational, and recreational purposes. Cigarettes deliver physical substances that are bodily ingested by smoking, causing multiple negative health consequences. One wouldn’t know, however, that there’s any difference between the two based on the cigarette-like warnings some states are forcing platforms to convey.

NetChoice, a trade association with members including Google, Meta, and Snap, sued California Attorney General Rob Bonta last month on free-speech grounds to block enforcement of the state’s Social Media Warning Law. Scheduled to take effect in January 2027, it requires covered platforms to clearly and conspicuously display a “black box warning” to users under the age of 18 for at least 10 seconds when they first access a platform on any given day.

The notification reads: “The Surgeon General has warned that while social media may have benefits for some young users, social media is associated with significant mental health harms and has not been proven safe for young users.” The Surgeon General reference pertains to a 2023 advisory issued by former Surgeon General Vivek Murthy.

California’s mandated warning must reappear, and its duration must extend to “at least 30 seconds, without providing the ability to bypass or click through the warning,” after three hours of cumulative daily usage on a platform. The three-hour daily usage warning massively covers “at least 75 percent of the screen or window” that a user sees when accessing a platform. It also must resurface with every hour of additional daily usage beyond three. That’s far different than readily ignorable, static print warnings on cigarette packs.  

I explained in June that “compelling platforms to convey government-mandated warnings and disclosures” now is en vogue among state legislatures. But just because a variety of statute is on-trend doesn’t make it constitutional.

The First Amendment protects not only the right to speak, but also the right not to be compelled by the government to convey state-endorsed messages that are subjective, disagreeable, or controversial. As the US Supreme Court observed in 2023, the government generally “may not compel a person to speak its own preferred messages.” The Court wrote in 2018 that “measures compelling speech are at least as threatening” to the First Amendment as laws restricting “what can be said.” It also has concluded that rather than co-opting a private entity’s speech to convey a government-sponsored message, a state should conduct “a public-information campaign” of its own via advertisements.

Laws compelling speech typically confront rigorous judicial review. I’ve explained that “strict scrutiny . . . is the default standard of review in compelled-speech cases” unless they involve the forced disclosure of “purely factual and uncontroversial information” in advertisements for purposes of “preventing deception of consumers.” California’s law doesn’t fall within that exception to strict scrutiny review. That’s because it doesn’t apply to advertisements and because the information it compels about alleged “significant mental health harms” purportedly “associated with” social media platforms is, as NetChoice asserts, “non-factual, controversial, and does not accurately reflect the former US Surgeon General’s Advisory.”

The First Amendment thus likely renders California’s Social Media Warning Law unconstitutional. It’s something Colorado already discovered after it adopted a compelled-warning statute targeting social media platforms that a federal judge preliminarily enjoined under strict scrutiny review almost exactly one year ago. Colorado is appealing that decision to the Tenth Circuit, which has yet to hear oral arguments in NetChoice v. Weiser. Minnesota also adopted a compelled-warning mandate that NetChoice is challenging.

NetChoice’s complaint against Bonta emphasizes that “California has myriad ways to speak to and persuade its residents. But the [law] instead compels regulated services to speak the State’s message.” NetChoice points out that “California officials can provide public-facing information about use of the internet,” such as “engag[ing] in systematic public campaigns to ensure that their opinions reach the desired audiences, as they do on many other topics” or by “requir[ing] schools . . . to provide digital literacy instruction about technology and social media use.”

Instead, California is commandeering platforms to convey—free of charge—its contested propaganda about alleged harms that (per the warning) supposedly are “associated with” platform usage. The use of “associated with” is problematic because the Supreme Court requires the government to prove “a direct causal link” between speech and harm to justify regulating lawful expression. A mere association or correlation between speech and harm isn’t sufficient.

The bottom line, as NetChoice’s Paul Taske explains, is that “California cannot force a private website to act as a mouthpiece for its preferred message. The State is free to speak for itself, but the Constitution forbids it from forcing others to speak for it.” That’s a voluntary warning message lawmakers should heed.