03 World

Shielding minors from harms ostensibly caused by social media platforms requires balancing the interests of multiple stakeholders in a nuanced, constitutional manner that digital age-verification and parental-consent statutes typically can’t achieve. That point was pounded home again in late June when Senior US District Judge John Gerrard issued a preliminary injunction in NetChoice v. Hilgers blocking enforcement of key parts of a Nebraska statute known as the Parental Rights in Social Media Act. Gerrard found the measure’s sweeping age-verification and parental-consent provisions “likely” can’t survive strict scrutiny review.

Before examining his opinion, it’s essential to identify the stakeholders and their respective interests when laws like Nebraska’s are challenged. For starters, parents possess interests not only in safeguarding their minors online, but also in not sacrificing their own privacy and anonymity before their minors can access and engage with First Amendment-protected speech. Additionally, parents have an interest in choosing for themselves—rather than letting the government decide for them and establish restrictive, default presumptions that must be overcome—the appropriate age when their children should have social media accounts.

Minors, in turn, possess “a significant measure of First Amendment protection” that entitles them to access a vast swath of lawful speech for multiple purposes—education, entertainment, personal growth, and self-realization, among others. Social media platforms provide them with a “modern public square” for both “speaking and listening.” Yet, those under age 18 don’t have a constitutional right to view sexually explicit speech that’s harmful to them (what the US Supreme Court calls “content that is obscene to minors”) even if that same speech is lawful and not obscene for adults.

Finally, social media platforms have expressive First Amendment rights to curate, organize, display, and serve lawful third-party content to users as “expressive products,” as the Court recognized in Moody v. NetChoice. Users and platforms thus both have First Amendment interests.

How do these interests intersect with Nebraska’s statute? The measure broadly targets social media platforms, which it defines as websites and internet applications that allow “an account holder to communicate with other account holders and users through posts.” It exempts online services such as email and cloud storage, plus websites consisting “primarily of content that is not generated by account holders” and those primarily devoted to online shopping or “career development opportunities.”

The law bars minors from holding an account with a “social media platform” unless the platform receives “express parental consent authorizing” minors to hold an account. This mandate requires platforms to implement “a reasonable age verification method to verify the age of an individual seeking to become an account holder” and to verify a parent’s age, along with receiving “[a]n oath, affirmation, or form signed by the parent . . . stating that the consenting adult is the minor user’s parent and authorizes such minor to become an account holder.”

Nebraska’s law thus regulates all three stakeholders described earlier: adults (parents), minors, and platforms. In doing so, it imposes a double whammy of age-verification mandates on platforms—one for minors, one for parents. Significantly, the law blanketly covers platforms rather than focusing narrowly on minors’ ability to access sexually explicit websites and platforms featuring content that, as noted above, they don’t have a First Amendment right to view.

Turning to the opinion, Gerrard initially rejected Nebraska’s stance that its law only regulates contractual conduct necessary for account creation—not speech itself—and thus doesn’t pose any First Amendment concerns. Gerrard rebuffed this regulating-conduct-only framing, reasoning that:

the age-verification requirement is only triggered if account holders are able to “communicate with other account holders and users through posts.” . . . It is expressive, communicative conduct inherent to a social media platform that triggers the law’s restrictions, thereby implicating the First Amendment rights of both NetChoice members and their users. (emphasis added).

Applying strict scrutiny, Gerrard found Nebraska didn’t produce evidence demonstrating that the enormous array of platforms ensnared by the law cause the harms lawmakers seek to mitigate. Namely, Nebraska blames platforms’ “algorithmic, personalized feeds” of “content about self-harm, suicide, and eating disorders” for purportedly causing “mental health disorders.”

Gerrard explained that Nebraska “appears to contend that social media platforms, writ large, are causing endemic mental health problems. That’s not borne out by the evidence at this early stage.” By foisting age-verification and parental-consent mandates on “any website that permits users to make an account and share content with other users” (emphasis in original), the law “too broadly restricts minors’ ability to access and engage in protected speech, even where speech does not pose the identified risk of harm.”

Lessons for lawmakers fixated on drafting social media statutes are simple: (1) focus closely; (2) draft narrowly; and (3) support all claims with evidence demonstrating what the Supreme Court calls a “direct causal link between” speech and harm.