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Echoing free speech restrictionists in Europe, Gov. Gavin Newsom came out recently in favor of state legislation restricting access to social media platforms for children under 16. Such legislation would likely prompt lawsuits as several similar attempts across the country already have.
In February, three social media age verification cases were heard in one week in Mississippi, Ohio and Tennessee. The three cases deal with requirements to verify users’ ages and obtain parental consent, and all of them make access to lawful speech conditional on identity verification — a violation of freedom of speech and parents’ autonomy to decide what’s best for their children.
NetChoice, a trade association representing internet and social media companies, is behind all three cases. NetChoice sued Ohio over its Parental Notification by Social Media Operators Act, Tennessee over House Bill 1891, and Mississippi over House Bill 1126. Besides age-verification requirements, the Mississippi law imposes obligations on websites to restrict certain types of content.
All three laws, NetChoice argues, violate the First Amendment, but the extra requirement in the Mississippi law is particularly egregious. Paul Taske, co-director of the NetChoice Litigation Center, explains how that law “prohibits content under broad, vague, and undefined terms,” requiring websites to “‘prevent exposure’ to content that ‘promotes, glorifies, or facilitates’ things like ‘suicide, self-harm, or eating disorders.’” But it is impossible to know when speech “promotes” or “glorifies” such things. This could lead to perfectly lawful content being banned. “Does Black Swan promote or glorify eating disorders because the main character has an eating disorder? Does Taylor Swift’s Fate of Ophelia promote or glorify suicide given its references to Ophelia’s tragic death in Hamlet? The law does not say,” explains Taske. Websites would face the choice between banning lawful speech or facing onerous penalties. “It’s a lose-lose situation when the state inserts itself into content moderation decisions,” he concludes.
This lose-lose situation is also evident with these laws’ age-verification requirements under which social media companies must verify the identity of all their users, not just minors. Everyone trying to use these services in Ohio, Tennessee, and Mississippi would have to present identification such as a state-issued drivers license or social security card. This requirement risks user privacy in the event of a leak (which we’ve seen already), and could effectively chill speech as many users would opt out of lawful speech rather than compromise their sensitive data.
These laws would also chill speech by making it harder to participate in lawful discourse online. “Imposing restrictions will necessarily deter those who otherwise would join the communities on these websites to engage in speech either as a recipient or active participant but now choose to sit on the sidelines of public discourse because they do not want to go through the hassle of confirming their age or identity,” Taske says.
Gov. Newsom cites his own problems with his daughter’s social media use as a rationale for age-verification laws in California, saying that parents need “help.” But these regulations don’t help parents — they take power away from them and force them to provide sensitive personal data to consent to their children’s social media use.
Age-verification laws place bureaucrats’ judgment of what children should and should not do as the standard, and parents have to go out of their way to override that standard, which they can do “only to the extent they are willing to subject themselves and their families to the privacy and data security risks incumbent on satisfying the government’s demands for speech access,” explains Taske. “The government sits in the driver’s seat and parents are relegated to second-class decision-makers because they have to satisfy the government’s mandates when they would otherwise freely permit their children to access websites the government disfavors.”
Excessive or inappropriate use of social media by children is not a problem for the government to solve. Parents’ concerns are enough to cause social media companies to act. Many of these companies have already made efforts to help parents set boundaries, including by creating a vast array of tools such as family supervision tools that allow parents to monitor their kids’ social media usage and set limits on time, content, and other factors.
Age-verification laws are a clear violation of the First Amendment rights of Americans, as the district courts in both Mississippi and Ohio have already concluded. If these state laws are ultimately struck down, not only could it deter states like California from passing similar laws, but it could also impact the future of federal bills on this matter, such as KOSA (the Kids Online Safety Act).
“We are continuing to see courts across the country strike down heavy-handed government restrictions on lawful speech,” says Taske, noting that NetChoice has already secured permanent injunctions in several states. “These successes, combined with our other cases, cast serious doubt on KOSA’s constitutionality,” he concludes.
If age-verification laws somehow pass judicial muster in Tennessee, Ohio, and Mississippi, individuals in this state will face severe restrictions to their freedom of speech, parental judgment and online safety. This will be the fate of Californians too if Newsom gets his way.
Agustina Vergara Cid is a columnist for the Southern California News Group. Follow her on X: @agustinavcid
