Report from Courthouse News
In Brief – A three-judge panel of the 11th Circuit Court of Appeals is allowing Georgia to enforce its law restricting the ability of minors under age 16 to create social media accounts, ruling that tech group NetChoice failed to demonstrate how the law violated its members’ First Amendment rights in all instances. The court’s opinion distinguished between “conventional” social media platforms hosting constitutionally protected speech, presumably platforms like Facebook and Snap, “hybrid” platforms such as X and Reddit that also may host pornography, and hypothetical platforms devoted exclusively to unprotected speech. Arguing that different types of content raise different First Amendment questions, the judges said that different levels of constitutional scrutiny may apply. Repeatedly citing the Supreme Court’s Moody ruling, the judges said that NetChoice failed to provide sufficient data or legal analysis for a broad facial challenge, noting that it had not even supplied a full list of affected members. NetChoice expressed disappointment in the ruling but noted the court did not rule that the law was constitutional.
Context – Despite a lack of evidence that social media is inherently harmful to teens, age-based restrictions on social media are taking off around the world, including in several US states. Initially, most state laws were blocked by judges applying “strict” First Amendment reviews. However, after the Supreme Court’s 2024 Moody decision significantly raised the bar on bringing “facial” First Amendment challenges, and its 2025 Paxton decision determining that laws requiring online age checks for porn sites face “intermediate” rather than strict scrutiny, appeals courts are now regularly allowing the state law to take effect during litigation. The issue seems destined for the High Court. In Moody, six justices agreed that regulating traditional social media likely faced strict scrutiny, and Justice Kavanaugh has explained the constitutional problems with the social media age laws. However, as the Moody, Paxton and other decisions illustrate, these justices have been consistently squirrely on internet cases.