Social media has become an embedded aspect of society. But what started as a mysterious and fun way of interacting with social circles online has now become a challenge for legal systems across the world. Today’s movement to restrict children and teens’ access to an online presence largely stems from mental health concerns.1[1]Social Media and Children 2023 Legislation, NAT’L CONF. Of STATE LEGS (Jan. 26, 2024) https://www.ncsl.org/technology-and-communication/social-media-and-children-2023-legislation. As state and federal policymakers struggle to address these newfound issues, potential impediments to teens’ claimed First Amendment-related rights are emerging.2[2]Emilee Coblentz, Ohio, more states push for social media laws to limit kids’ access: Where they stand, USA Today (Jan. 12, 2024) https://www.usatoday.com/story/news/nation/2024/01/12/social-media-laws-parental-consent-teens-kids-netchoice-lawsuits/72182348007/. Proposed federal legislation will likely raise similar First Amendment concerns and lower courts are already deciding related state cases.3[3]Id. This article will examine some of the legislation and the challenges they have faced in court, as well as address what the future may look like in the area of social media regulation.
Proposed and Current State and Federal Legislation
In 2023, thirty-five states and Puerto Rico proposed legislation and twelve states successfully enacted bills and adopted resolutions that affected children’s use of social media in some way.4[4]Social Media and Children 2023 Legislation, NAT’L CONF. OF STATE LEGS (Jan. 26, 2024) https://www.ncsl.org/technology-and-communication/social-media-and-children-2023-legislation. Ideas included requiring age verification or parental consent to open social media accounts, adding digital and media courses to K-12 education curriculum, and creating study committees and task forces to study the problem.5[5]Id.
Teens’ online presence is also being addressed federally. President Biden acknowledged a need for updated children’s privacy regulation in his 2022 and 2023 State of the Union addresses, urging bipartisan legislation to stop tech companies from collecting data on young users through advertisements.6[6]Catherine Ransom, “The Pre-1964 Cigarette” of Today: Social Media, Predatory Online Practices, and New Advances in Children’s Privacy Regulation, 24 N.C.J.L. & TECH, 104, 108 (2023); see also Joseph R. Biden, President of the U.S., State of the Union (Feb. 7, 2023). Now, the U.S. Senate is working on what it calls the Kids Online Safety Act (“KOSA”). 7[7]Kids Online Safety Act, S. 1409, 118th Cong. (as approved by Senate Commerce Committee on July 27, 2023).
KOSA, however, is not the first legislative attempt to provide protections for children’s online presence. In 1998, the Children’s Online Privacy Protection Act (“COPPA”) was adopted to address children’s online privacy. COPPA was introduced in the 2023-2024 session for amendments.8[8]Children’s Online Privacy Prot. Act, 15 U.S.C. § 6501 (amended 2013). These amendments would expand protection of children’s online privacy and the collection and use of their information.9[9]Children and Teens’ Online Privacy Protection Act, S. 1418, 118th Cong. (introduced May 3, 2023).
While COPPA undertakes privacy matters by prohibiting online operators from collecting or maintaining information about a child, KOSA aims to address online harms that may impact children when they use social media platforms through a parental consent requirement.10[10]Kids Online Safety Act, supra note 4, at § 2 (2023). Though COPPA and KOSA have different focuses, if KOSA is enacted, its parental consent requirement could displace pressure social media companies may have felt for potential violations of laws like COPPA.
As KOSA is currently written, it does not define social media but does suggest that social media platforms do not mitigate potential sexual exploitation and online bullying. To address this, KOSA would establish a yet to be disclosed social media age minimum and would require parental consent for children under the age of seventeen.11[11]Id.
When a social media platform becomes aware that a child is utilizing it, parental tools and safeguards would be provided to the child’s parent and parental consent would be required.12[12]Id. at § 5(a)(2)(A) (2023). Parents will have access to all account settings with the ability to monitor their children’s time spent on a platform. 13[13]Id. at § 4(b) (2023). Next, KOSA would require social media platforms limit access through restrictions on communication, compulsive use, search recommendations, and other things.14[14]Id. at § 4(a)(1) (2023).
KOSA is still in early legislative stages but has the potential to alter children’s and parents’ relationships with social media platforms if it is signed into law.
Arkansas District Court Judge Grants Preliminary Injunction on Arkansas Law
While many view KOSA as a win against the negative effects from children and teen’s use of social media, there is some tech industry pushback against related state legislation, pushback that specifically argues that minors’ First Amendment rights are being restricted in troubling ways. For example, in August of 2023, the Western District of Arkansas District Court granted a preliminary injunction against an Arkansas law that would require parental consent for minors to create new social media accounts.15[15]NetChoice, LLC v. Griffin, No. 5:23-CV-05105, 2023 WL 5660155, at *1 (W.D. Ark. Aug. 31, 2023).
NetChoice, a trade association for social media platforms that include TikTok and Meta, requested the injunction.16[16]Id. The Arkansas law is similar to KOSA — it aims to address the potential negative emotional effects children and teens can face when they use social media.17[17]Id. While the judge did not reach a full conclusion on the constitutionality of the law, language in the decision noted that social media platforms contain vast amounts of constitutionally-protected speech important to children.18[18]Id. at *16, 17.
In its decision granting the preliminary injunction against enactment of the Arkansas statute, the court also noted that multiple systems are already in place that allow parents to protect their children from the risks that social media platforms may pose, including time-restriction settings, blocking applications, and parental controls on wireless routers.19[19]Id. at *6-7.
In March of 2024, NetChoice filed a motion for summary judgment and a motion to stay discovery. 20[20]NetChoice, LLC. v. Griffin, No. 5:23-CV-5105, 2024 WL 1262476, at *1 (W.D. Ark, March 24, 2024). The court did not rule on NetChoice’s motion for summary judgement but did grant in part and deny in part the motion to stay discovery. The court contended that the Arkansas law is not narrowly tailored to address the harms that the State argues minors encounter on social media, citing its August of 2023 preliminary injunction ruling.21[21]Id. at *3. Ultimately, the court held that extensive discovery by the State for evidence that the Arkansas law is narrowly tailored is excessive and unnecessary, but limited discovery is allowed.22[22]Id. at *5.
Discovery was set to conclude in early June of 2024, but no rulings have been made since the March of 2024 motion.23[23]Id.
Ohio District Court Judge Finds Ohio Law Unconstitutional
NetChoice filed a temporary restraining order that the Ohio Southern District Court granted against Ohio’s Attorney General David Yost for an Ohio state law that was set to take effect on January 15, 2024. 24[24]NetChoice LLC. v. Yost, No. 2L24-cv-00047, 2024 U.S. Dist. LEXIS 24129 at *1 (S.D. Ohio Feb. 12, 2024). The Ohio law is similar to KOSA and the Arkansas law at issue in NetChoice v. Griffin, as it aims to require certain website operators obtain parental consent before allowing unemancipated children under sixteen to register or create an account on the platform. 25[25]Id.
In February of 2024, NetChoice filed a motion for preliminary injunction against the Ohio Attorney General.26[26]Id. In its decision, the court cited Brown v. Entm’t Merchs. Ass’n.27[27]NetChoice, 2024 U.S. Dist. LEXIS 24129 at *32 (citing from Brown 564 U.S. 786 at 795 n.3). In Brown, the Supreme Court stated that “minors are entitled to a significant measure of First Amendment protection, and only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to them.”28[28]Brown v. Entm’t Merchs. Ass’n, 564 U.S. 786, 794 (2011) (internal quotations omitted). The Court further explained that the State holds the power to protect children from harm, but this is not a “free-floating” power to restrict ideas children may be exposed to.29[29]Id.
The Ohio Southern District Court cited to note three of the Brown decision, finding laws that prevent children from hearing or saying anything with prior parental consent do not enforce parental authority over children’s speech, but impose governmental authority subject to parental veto. 30[30]Id. at *32 (citing from Brown 564 U.S. 786 at 795 n.3).
The court found the Ohio law unconstitutional because (1) it aims to regulate website operator’s and minor’s ability to produce and receive speech and; (2) the State is favoring engagement with certain topics and excluding others, which is a content-based exception subject to strict scrutiny.31[31]Id. at *17. Ultimately, the court concluded the Ohio Attorney General remains enjoined from implementing and enforcing the law against NetChoice and its members.32[32]Id. at *41.
Federal Legislation Could Be Challenged Similarly
As more states evaluate implementing legislation limiting social media usage and KOSA continues to be considered, the question of such limitations’ constitutionality will remain relevant. While many uncertain factors are at play in whether KOSA will become law (for example, the upcoming presidential election and results of the 2023-2024 legislative session), First Amendment concerns raised in the NetChoice v. Griffin and further addressed in NetChoice v. Yost could weigh on legislators as they consider KOSA.
Many of the legal questions that come with children’s online and social media presence continue to remain unanswered. As more legislation is enacted and courts decide on the matters at hand, the future of protentional restrictions will be more clear. For now, the Legislative Branch will need to be quite attentive in its approach to issues of minor’s online presence and be cognizant of how it can protect children while not infringing on the most powerful amendment to our Constitution.
Written by: Zoe Schacht
Zoe Schacht is a 2L at Brooklyn Law School
