Jennifer Huddleston and Gent Salihu
Introduction
As discussed in previous work, “youth online safety” bills, however well‐intentioned, raise significant constitutional concerns. These laws are likely to violate the First Amendment due to their impact on the speech rights of users of all ages, and there are additional concerns about their impact on privacy. The emergence of legal challenges against the implementation of these laws has substantiated these concerns.
The US district courts in both Arkansas and California issued preliminary injunctions stopping the enforcement of the Arkansas Social Media Safety Act and the California Age‐Appropriate Design Code Act (CAADCA). These laws, intended to implement age verification and restrictions for children accessing the internet, are likely to limit speech for adults without necessarily providing enhanced protections for young internet users. However, a court has allowed a Utah law related only to age verification for pornographic content to proceed, denying the challenge to the law.
What the Courts Decided in Arkansas and California
The US District Court in California granted a preliminary injunction against enforcing CAADCA, holding that the act “likely violates the First Amendment” based on NetChoice’s claim that the law imposes “speech restrictions” that “fail strict scrutiny and also would fail a lesser standard of scrutiny.”
The court notes that California fell short in identifying case law that would support the kind of restrictions on the collection and sharing of information as imposed by CAADCA. The court also notes that given Supreme Court case law that the “creation and dissemination of information are speech within the meaning of the First Amendment,” CAADCA’s restriction on usage and access to information is likely to fail constitutional muster. Even if CAADCA were to dictate usage and access of commercial speech, the court, relying on Sorrell v. IMS Health Inc., notes that such speech is entitled to at least intermediate scrutiny under the First Amendment.
The US District Court in Arkansas went a step further, noting that the Social Media Safety Act would not only restrict speech under a strict scrutiny standard but also prove ineffective in protecting youth, as it is “littered with” exemptions. For example, companies in the business of interactive online games are exempt from the law. This means that the Arkansas law does not extend protections beyond COPPA because gaming companies will not be prevented from collecting data from children above 13 years old and then selling it to advertisers.
Both Arkansas and California sided with NetChoice’s concerns about the burdens that the laws impose on adult speech. Noting the difficulty of estimating children’s age without figuring out the age of everyone else, the California court ruling noted that businesses opting not to estimate age will end up shielding content for both children and adults, thereby reducing the adult population to “only what is fit for children.”
The CAADCA restrictions, according to the California court, would fail intermediate scrutiny, let alone strict scrutiny. The Arkansas court ruling expresses concern over the law’s requirement to forego anonymity on the internet, a mandate that would in turn deter users from accessing certain websites and chill speech.
While Arkansas and California took different paths in their legal analysis, they reached the same conclusion: both the CAADCA and the Social Media Safety Act are likely to violate the First Amendment.
Given that California’s CAADCA restrictions are unlikely to meet either strict or intermediate scrutiny standards, and since Arkansas’s law has been enjoined due to its ineffectiveness and limitations on speech, other states contemplating similar laws should reconsider their approach to protecting young people online, which is a matter of serious concern. The laws designed after the Arkansas or California model are likely to fail in protecting young internet users, while inadvertently suppressing speech for everyone.
Key Takeaways from These Early Cases
While both the underlying laws and the cases themselves are distinct, there are a few general takeaways from these cases that policymakers, internet users, and innovators should be aware of.
These cases illustrate that youth online safety laws will undergo strict scrutiny by the courts due to their impact on First Amendment rights. This means that for such laws to be upheld, states must demonstrate that the laws are narrowly tailored to serve a compelling government interest. For example, questioning will likely arise regarding the laws’ impact on users over the age of 18, scrutinizing whether the laws are narrowly tailored to affect only underage users. Additionally, proving that safeguarding online youth is a state’s interest—rather than that of individual households—will also pose challenges. Defenders of broader social media regulation may also face an uphill battle given the abundance of tools presently available to parents, suggesting the existence of less restrictive means without consequences for speech and innovation.
As mentioned, another key takeaway from these cases was the courts’ recognition of the impact these laws have on adult users of the internet. It is not surprising that, in such cases, courts relied on precedent from prior online safety battles in Ashcroft v. ACLU, which struck down COPPA, and the debates over video games and free speech in Brown v. Entertainment Merchants Association, which struck down a California law restricting the sale of “violent” video games to minors.
Youth online safety regulations still impact those over the age of 18 and their speech rights, as the only way to ensure compliance is to either treat everyone like they are under 18 or to require age verification for all users. While much of the speech analysis has been focused on the impact of adult users, it should not be forgotten that such regulations also impact the speech rights of young people, including the positive and entrepreneurial opportunities the internet has provided them.
Notably, there are distinctions in the courts’ reasoning due to the difference in the laws, but policymakers should be aware that these cases show it will be difficult to craft general‐purpose age verification or age‐appropriate design codes that can pass strict scrutiny.
Conclusion
While proponents of government regulation of social media and the internet in the name of protecting the next generation may find the passage of the United Kingdom’s Online Safety Bill noteworthy, recent court decisions in the United States should prompt reflection on the broader impact of such proposals on the free expression of users of all ages. The court decisions issuing the injunctions demonstrate that these proposals would affect not only the speech and access to information of those under 18 but also of all internet users.
As parents and policymakers continue to debate the impact of technology and social media on young people, perhaps these recent court rulings should encourage reconsideration of how these technologies have enabled speech and highlight the necessity for nuanced safety solutions that do not need to arise from a government‐dictated approach.