Report from MediaPost
In Brief – Federal District Judge Amy Totenberg has blocked enforcement of Georgia law SB 351, the Protecting Georgia’s Children on Social Media Act. In her 50-page order she says, “The state seeks to erect barriers to speech that cannot withstand the rigorous scrutiny that the Constitution requires.” The law requires social media platforms to verify users’ ages, prohibits users under age 16 from creating accounts unless they receive parental permission, and prohibits the platforms from displaying targeted ads to users under age 16. Judge Totenberg said the parental consent mandate “would dramatically curb minors’ ability to speak and access to speech.” Clearly aimed at traditional social media sites like Instagram, TikTok and Snapchat, SB 351 defines covered platforms as those allowing users to create profiles, upload material, view user-generated content, and interact with other users. However, because many platforms employ those features, the state can exempt platforms that are certified as predominantly serving other purposes, such as news, sports, or gaming. The judge said the exemption process also “dooms” the law’s constitutionality by forcing the state to make discretionary calls about content.
Context – States keep passing laws regulating social media on the premise that they are harmful to teens. And the laws keep getting blocked by federal judges. Georgia is the most recent example, following on the heels of Mississippi, Ohio, Utah, Arkansas, and California. Although the Supreme Court recently ruled that a Texas law requiring online pornography sites to employ age verification was constitutionally acceptable, applying “intermediate” scrutiny to the law, the Court’s majority noted that minors had no First Amendment right to access pornography, and while adults did, age checks only impacted the adults incidentally. The federal judges blocking the state social media laws are consistently ruling that teens have clear First Amendment rights to use social media platforms, therefore the laws must be judged using “strict” scrutiny.