6 April 11-17, 2024 miaminewtimes.com | browardpalmbeach.com New Times | music | cafe | culture | Night+Day | news | letters | coNteNts | Month XX–Month XX, 2008 miaminewtimes.com MIAMI NEW TIMES | MUSIC | CAFE | FILM | ART | STAGE | NIGHT+DAY | METRO | RIPTIDE | LETTERS | CONTENTS | DEAD TO RIGHTS Florida’s new juvenile social media law is in the First Amendment’s crosshairs. BY IZZY KAPNICK AND PATRICK MCCASLIN F lorida Gov. Ron DeSantis recently signed into law a set of sweeping restric- tions on juvenile use of social media — prohibiting Flo- ridians 13 years old and younger from having social media ac- counts and requiring 14- and 15-year-olds to have parental con- sent for their accounts. But it remains to be seen whether the reg- ulations will ever take effect. First Amendment advocates and industry groups are waiting in the wings to file legal challenges, while some constitutional experts posit the law has a snowball’s chance in hell of withstanding court scrutiny. Meanwhile, comparable juvenile social media regulations in other states are on hold owing to lawsuits claiming they blatantly violate young people’s free speech. Howard Wasserman, a law professor at Florida International University, is skeptical that a law as broad as Florida’s can survive challenges on free speech grounds. He says that, just as there is a right to visit a bookstore and explore ideas in a novel, Americans have a right to visit a social media site and browse. “There’s a right to engage in and receive expression by whatever means that expres- sion is going to be made or heard,” Wasser- man, a constitutional law author and SCOTUSBlog contributor, tells New Times. “The First Amendment protects at that level of generality.” Legislators have some legal leeway to pass laws that potentially tread on the First Amendment, though they face a tightrope walk through the federal court system. Courts will generally strike down content- based restrictions on speech unless they are driven by a “compelling government interest” and use the “least restrictive” means possible. Florida House Speaker Paul Renner has defended the bill on the grounds that drastic measures were necessary to curb youth social media addiction. “The internet has become a dark alley for our children where predators target them and dangerous social media leads to higher rates of depression, self-harm, and even sui- cide,” Renner said in March upon the bill’s signing. “Florida leads the way in protecting children online as states across the country fight to address these dangers.” Age-based social media restrictions have been cropping up around the nation in both blue and red states as lawmakers try to play regulatory catch-up in light of studies linking overuse of social media to psychiatric harm in young users. In Florida, Democratic legislators voted overwhelmingly in favor of the new law. Though the wave of social media regula- tions is a novel development, the question of just how far lawmakers can go in controlling youth access to media is one that federal courts have been weighing for decades. Free speech scholars skeptical of the Flor- ida law’s fate point to the U.S. Supreme Court’s 2011 decision to axe a California law that prohib- ited the sale of “violent video games” to those under 18. However well-intentioned a law may be, the late conservative Justice Antonin Scalia noted in the decision that the government cannot stand in the shoes of a parent and cut off access to content on a whim. He wrote that states do not have “a free-floating power to restrict the ideas to which children may be exposed.” First Amendment Minefield Legislators have justified social media age re- strictions by framing children’s overuse of Facebook, X, TikTok, and Instagram as a pub- lic health crisis. The concerns stem from a number of studies that correlate overuse of social media with poor school performance and developmental issues. An academic paper about social media addiction, published in the oft-cited Frontiers in Psychiatry journal, states that “social media addiction may lead to negative consequences for adolescents’ school performance, social behavior, and interpersonal relationships.” The paper calls for warning labels to the apps or limiting use during certain hours of the day, though it does not go so far as to recommend a youth ban. Free speech groups who oppose the Flor- ida law (AKA “Online Protections for Mi- nors”) say more research must be done to pinpoint the psychological effects of long- term social media use on youth. Moreover, they characterize the law as a blunt-force instrument to address a specific problem — the kind of overreaching govern- ment action that strays far from the “narrow tailoring” required for laws that stand to in- fringe on free speech. “There’s nothing ‘narrow’ about banning an entire class of users from accessing pro- tected speech,” the Foundation for Individual Rights and Expression (FIRE) said in a public statement. “The are plenty of other measures to be tried by parents, platforms, and the govern- ment before the state swings the ax and bans kids from social media outright. Platforms can refine the tools they make available for parental oversight of minors’ accounts, publi- cize their availability, and educate parents on how to use them,” the group argued. By giving parents of 14- and 15-year-olds the option of consent, the law becomes a little less restrictive, but certainly not the “least re- strictive,” as required by the constitutional standard, according to Wasserman. To boot, Wasserman says, the bill appears to tread on a First Amendment right to en- gage in anonymous self-expression. “If I’m 16, in order to get on a social media site, I am going to have to submit to an age verification system,” Wasserman tells New Times. “That age verification system is going to reveal my identity and eliminate my oppor- tunity to speak anonymously.” As it stands, the Florida bill, HB 3, is scheduled to go into effect on January 1, 2025. Free speech advocates and industry groups are expected to lodge challenges to the law long before then. Though it’s unclear how the State of Flor- ida will respond to legal challenges, defenses put forth by attorneys general in other states provide a glimpse into possible rebuttals. In Arkansas, Attorney General Tim Griffin defended against tech industry group Netchoice’s challenge to that state’s new social media age regulations by telling a federal judge, “Throughout history, governments have designated certain areas that are not appropriate for minors to occupy.” “From bars to casinos, state and local gov- ernments have regulated minors’ access to such establishments, due to the potentially harmful nature of what lies inside. The Con- stitution has always allowed such regula- tions,” Griffin wrote. Griffin also made the case that the law was not a restriction on speech, but rather a regu- lation on “the places where minors can be.” “[The law] allows minors to engage in speech anywhere that they wish (even social media with parents’ permission). The only limitation is on conduct — entering a social- media establishment alone. There is a long history of restrictions on minors entering Illustration by Paper Trident/Getty Images | METRO | COMPARABLE JUVENILE SOCIAL MEDIA REGULATIONS IN OTHER STATES ARE ON HOLD OWING TO LAWSUITS CLAIMING THEY BLATANTLY VIOLATE YOUNG PEOPLE’S FREE SPEECH.
