McGARRY: States Should Stop Wasting Time And Money On Blatantly Unconstitutional Social Media Regulations

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David B. McGarry Contributor
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As Albert Einstein (never actually) said, “The definition of insanity is doing the same thing over and over again and expecting different results.” State lawmakers intent on imposing sweeping and unconstitutional online regulations should take note.

Feeling a healthy and legitimate concern for minors’ safety and wellbeing online, myriad states have proposed — and several have enacted — legislation establishing de facto or de jure social media age verification regimes. Such proposals generally require platforms either to ban users below a certain age threshold (e.g., 16 years old) or force them to obtain their parents’ affirmative consent before registering.

Both prongs (mandatory age verification and by-default exclusion of minors) blatantly violate the Constitution. Over the course of decades, myriad courts have ruled to that effect. Although defiant lawmakers have passed many such unconstitutional laws, judges have consistently toppled them. Consider the protracted death of the federal Children’s Online Protection Act of 1998. In 2023, courts blocked age verification laws in Arkansas, California, and Texas. This year, Utah abandoned a legally challenged (and likely doomed) law. Last week, trade group NetChoice secured a preliminary injunction against an Ohio statute.

No unstoppable force compels lawmakers to enact unconstitutional laws that are predestined for injunction. They need not waste political energies enacting unconstitutional statutes and spending taxpayer dollars to defend them. In Florida, for example, Gov. Ron DeSantis is opposing a Republican-backed age verification proposal. Justifying his opposition, he has merely stated the obvious.

“[T]hese things have huge legal hurdles. They’ve been held up in courts,” DeSantis said. “I don’t want to go down the road of doing something that is not going … to pass muster legally.” 

State lawmakers would do well to review the relevant constitutional issues. First off, state-dictated age verification imposes significantly on adults’ speech rights. Such laws require social media platforms or third-party vendors to collect sensitive personal information, generally either as government documentation or facial scans. In order to avoid violating the law, platforms end up having to subject all users to verifications — irrespective of their age. This fractures the First Amendment’s protections for anonymous speech. Along with the privacy risks such data collection creates, it also deters adult Americans from speaking online.

Moreover, irrespective of age verification, sweeping bans of minors from social media violate First Amendment jurisprudence. District Judge Algenon Marbley’s just-delivered injunction against Ohio’s youth online safety law, which would have barred minors under 16 years old from social media absent parental consent, reads as a primer on these issues. 

According to Marbley, Ohio’s approach was both too indiscriminate and likely inapt. Ohio declined to mandate robust age verification explicitly, but how else it could successfully enforce its social media age threshold remains unclear. Predicating minors’ right to speak online — and to consume others’ online speech — on parental consent “is a breathtakingly blunt instrument for reducing social media’s harm to children,” Marbley wrote. He also quoted from an earlier First Amendment case to note that Ohio’s law, which purports to protect children from horrific online dangers, offers no protection to any child “so long as one parent … says it’s OK” for him to access social media. As the judge argues, “parents must only give one-time approval for the creation of an account, and parents and platforms are otherwise not required to protect against any of the specific dangers that social media might pose.” 

Many advocates of muscular internet regulation would rejoin that children have no significant speech rights at issue and, consequently, such concerns have no merit. This common point is badly mistaken on the law. Children do, in fact, enjoy significant First Amendment protections. Writing for the Supreme Court majority in Brown v. Entertainment Merchants Association (2011), Justice Antonin Scalia held that while children’s rights differ from adults’, “it does not follow that the state has the power to prevent children from hearing or saying anything without their parents’ prior consent.”

Marbley’s reasoning relied heavily on the Brown decision, noting Scalia’s insight that laws “do not enforce parental authority over children’s speech and religion” or anything else but rather “impose governmental authority, subject only to a parental veto.”

However fervently lawmakers want to enact legislation they perceive to be child-protective, the Constitution stands firm. In America’s legal system, the fact that a policy proposal violates the Bill of Rights serves as sufficient grounds to reject it. Lawmakers have repeatedly been taught their lesson, but some have yet to learn it.

David B. McGarry is a policy analyst at the Taxpayers Protection Alliance.

The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller.