Ohio Lt. Governor John Husted is spearheading an attempt to enact legislation that would keep Ohioans 16 and younger off certain social media platforms without demonstrated parental consent. The Lt. Governor cites to findings by the Surgeon General that children's use of social media can have adverse consequences for mental health. That may be the case, but the question remains whether a well-intentioned law can survive a constitutional challenge. I'm not sure that it can, for several reasons.
First, it appears that the law only applies to certain social media sites, including Meta (Facebook), Instagram, Twitter and TikTok. To the extent the bill only applies to a limited number of sites, it is arguably content based. If so, courts will need to apply strict scrutiny when reviewing the law. That means there must be a compelling government interest supporting the law, and the law must be "narrowly tailored." I suspect Lt. Governor Husted is marshalling his case to support the argument that the need for the law is compelling. But he may run into trouble on narrowly tailored part. It is going to be hard to argue that a law that sweeps so many sites and so many people under its purview is "narrowly tailored." This is a tough hurdle for any law to pass because clever lawyers can almost always find a method that is less restrictive.
Second, the law effectively requires the site user to identify themselves to the social media companies affected. Some courts may see that as a form of compelled speech. And the First Amendment prohibits the government from compelling speech just as surely as it prohibits government from restricting speech.
Third, this law reminds me of a California law passed several years ago, that banned the sale or rental of violent video games to minors. The U.S. Supreme Court struck that provision down in a case called Brown v. Entertainment Merchants Association. In so doing, the Court recognized that minors have free speech rights. There is no discussion of age in the First Amendment. In Brown, California argued that violence could be regulated as a form of obscenity. Justice Scalia rejected that argument, on the ground that obscenity is sexual in nature. He also pointed to the long tradition of violence in children's literature.
Here, the primary concern isn't obscenity, but rather the potential harm inflicted by minors' use of social media generally. So, Brown may not be directly on point. But the notion that even kids under the age of 16 have First Amendment rights seems pretty well ingrained.
All of this is contingent of course on the proposed law actually being adopted by the Ohio legislature. If it is adopted, it will take effect 90 days from passage. In that time, look for a challenge which would likely ask for an injunction prohibiting the enforcement of the new law. An injunction could delay the enforcement of the law until a court ultimately rules on the constitutionality. This means it may be a while before we actually see this law in action. But it will be interesting to watch the fight.
