With minors spending more time than ever on social media,1 many parents are concerned about its effects on their children.2 In response, legislatures across the country have passed laws limiting minors’ access to social media platforms.3 Last March, Florida Governor Ron DeSantis signed into law House Bill 34 (H.B. 3), which bans children thirteen or younger from becoming social media account holders and requires parental consent for fourteen- and fifteen-year-olds to obtain accounts.5 While the new law supposedly protects minors, it infringes on their First Amendment rights by banning them from expressive platforms.
H.B. 3 was introduced in Florida’s 2024 legislative session.6 Framed as a law to “protect children,”7 this measure likely came from increased concern about the potential negative impacts social media could have on youth, particularly young girls.8 H.B. 3 easily passed both chambers of the state legislature.9 But free speech and technology policy advocates have criticized the law for violating minors’ First Amendment rights and adults’ expressive and privacy freedoms.10 At least twelve states have passed similar laws in the past several years.11 Notably, courts have enjoined sections of at least four of these laws.12
H.B. 3 adds three sections to the “Consumer Protection” chapter of the state’s statutes.13 The first prohibits social media platforms14 from contracting with minors thirteen or younger to become account holders.15 It also requires covered platforms to terminate accounts held by anyone who is thirteen or younger, or whom the platform categorizes as such for advertising.16 Furthermore, any fourteen- or fifteen-year-old account holder must have parental or guardian permission.17 Without parental consent, platforms must terminate those accounts.18 “[K]nowing or reckless violation” of these subsections constitutes “an unfair and deceptive trade practice” for which the government may seek “a civil penalty of up to $50,000 per violation,” as well as “reasonable attorney fees and court costs.”19 Moreover, the bill allows minor account holders to recover “up to $10,000 in damages” if the platform “knowingly or recklessly violates” the law.20
The second section H.B. 3 created requires “commercial entit[ies] that knowingly and intentionally publish[] or distribute[] material harmful to minors” to use age verification to ensure that those “attempting to access the material” are at least eighteen.21 The final section H.B. 3 created sets requirements for third parties conducting anonymous age verification,22 prohibiting them from retaining or using for other purposes personal identifying information used for age verification23 and requiring them to keep that information anonymous and secure.24
Although H.B. 3 seems to protect minors by limiting their access to social media, in so doing, it unconstitutionally violates their First Amendment right to free expression. Minors have strong First Amendment rights, which H.B. 3 burdens by banning them from expressive platforms. And H.B. 3 is presumptively unconstitutional because it targets certain platforms based on their content — here, social subject matter. H.B. 3, as a content-based regulation not narrowly tailored to achieve a compelling governmental interest, cannot survive.
The Supreme Court has long recognized that minors have significant free speech rights.25 The right to free speech and press includes the “right to receive [and] the right to read” as well as the right to speak.26 While the Free Speech Clause primarily exists to protect access to “discourse on public matters”27 — plenty of which can be found on social media — it also safeguards access to entertainment because “[w]hat is one man’s amusement, teaches another’s doctrine.”28 The Supreme Court has made clear that states may restrict minors’ access to information more than they may restrict adults’ access,29 but “only in relatively narrow and well-defined circumstances may the government bar public dissemination of protected materials to them.”30 As such, “[s]peech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them.”31 And in banning some minors from social media, that is exactly what the Florida legislature has done.32
When a law burdens First Amendment free speech rights, it is typically subject to one of two forms of heightened judicial review: intermediate or strict scrutiny.33 If the law applies evenhandedly to all topics, ideas, and subjects, then it is generally content neutral and is analyzed under the more relaxed intermediate scrutiny standard.34 If, however, the law is content based, courts analyze it under the rigorous strict scrutiny test.35 A content-based regulation “either single[s] out particular topics, ideas, or subjects for regulation — while leaving others unfettered — or [is] enacted because of governmental disagreement with a particular message.”36 On the other hand, “[c]ontent-neutral laws . . . typically govern only the time, place, or manner of speech” — and “not its substance.”37
H.B. 3 may not seem content based at first glance, but “not all ‘facial distinctions . . . are obvious.’”38 H.B. 3’s supporters argue that it is not content based because it targets platforms based on their addictive design features rather than their content.39 However, “a law ‘cannot escape classification as facially content based simply by swapping an obvious subject-matter distinction for a “function or purpose” proxy that achieves the same result.’”40 While content-based restrictions are more obvious when they facially target “particular subject matter,” laws targeting a platform’s “function or purpose” are also inherently “based on the message a speaker conveys.”41 A social media ban is content based if it is based on the idea that social media is addictive at least in part because of its content.42 And this law targets certain social media platforms because of the content the platforms serve to minors — not solely because their features may be addictive.
Indeed, the government’s characterization of H.B. 3’s purpose, which is dispositive,43 suggests that it is intended to target specific content. The legislature is targeting the “‘social’ subject matter ‘of the material [the platforms] disseminate[].’”44 In other words, legislators are targeting platforms because they “allow” or encourage “users to interact socially with each other”45 and that social content may lead to mental health harms. That legislators are targeting these platforms due to their content is clear in at least two places: H.B. 3’s Bill Analysis46 and comments from State Representative Tyler Sirois.47
First, the Bill Analysis discusses harms associated with social media, primarily poor mental health, and ties them specifically to social content.48 In discussing that social media harms minors’ — especially girls’ — mental health, it cites to various sources arguing that much of this harm relates to the social content on social media.49 Though the legislature was not explicit, its motive in restricting minors’ ability to create social media accounts was to restrict access to social content because the alleged harm comes from that content.50 And, as a Utah federal district court explained in NetChoice, LLC v. Reyes,51 that makes the regulation content based because the “whole point” of these platforms is to offer “interactive, immersive, social interaction” services.52
Second, comments from Representative Sirois further reveal that H.B. 3 aims to prevent minors from viewing social content. Representative Sirois was the original sponsor of House Bill 153 (H.B. 1), a similar social media regulation that Governor DeSantis vetoed.54 In discussing the bill on the House floor, Representative Sirois called H.B. 3 “the lifeboat for House Bill 1”55 — indicating that it served the same goals as the previous bill. And when discussing H.B. 1, Representative Sirois identified the problem with social media as “a matter of the content that [minors are] seeing and posting and responding to one another with.”56 Because H.B. 1 was meant to target the content minors are seeing, it is content based, and Representative Sirois’s “lifeboat” comment shows that H.B. 3 is meant to serve the same objectives.57 Representative Sirois’s comments demonstrate that, while the law may incidentally sweep in platforms that do not prioritize social subject matter, the legislature’s focus was on platforms that encourage and curate social subject matter because of the content’s allegedly harmful effects. Thus, H.B. 3 should be analyzed under strict scrutiny.
Even a content-based law can survive strict scrutiny if it is narrowly tailored to serve a compelling governmental interest,58 but H.B. 3 fails to meet either prong of this standard. First, the interest is insufficiently compelling. For a governmental interest to be compelling, there must be a “direct causal link” between social media and “harm to minors.”59 In Brown v. Entertainment Merchants Ass’n,60 a case where the Supreme Court struck down a California law prohibiting minors from purchasing violent video games, the Court said the evidence of harmful effects — like increased aggression — on minors showed “at best some correlation.”61 Similarly here, there is no clear direct causal link between harm to minors and social media. The American Psychological Association (APA) has made clear that “[u]sing social media is not inherently beneficial or harmful to young people.”62 Instead, “the effects of social media likely depend on what teens can do and see online, teens’ pre-existing strengths or vulnerabilities, and the contexts in which they grow up.”63 Thus, at best, the state can show social media may potentially harm minors depending on how they use social media, how they grew up, and who they are as people. This is not a direct causal link.
Second, H.B. 3 is not narrowly tailored. Even if there are legitimate interests for limiting minors’ access to social media, the government cannot constitutionally perform this role by banning minors from accessing information and expressing themselves on the platforms.64 In analyzing a similar restriction, an Ohio federal district court recently called the law “untargeted” because after one-time parental approval, “parents and platforms [were] otherwise not required to protect [children from] the specific dangers that social media might pose.”65 H.B. 3 suffers from similar infirmities: If the addictive nature of social media platforms is so harmful to children, then the law is not tailored to serve the government’s interest in protecting children because one-time parental permission allows children to be subjected to the purported harm, making it underinclusive.66 It is also overinclusive because H.B. 3 violates even more rights by bringing adults into its fight, forcing them to unmask themselves to ensure minors are banned from social media.67 Thus, the law is not sufficiently narrowly tailored.68
While the government may reasonably aim to address harm to children, many expressive modes of consumption have been targeted as harmful for minors for centuries and later accepted as society moves on to the next bogeyman.69 As the government figures out how or whether to address adequately those purported harms, it must recognize that “‘the basic principles of freedom of speech and the press, like the First Amendment’s command, do not vary’ when a new and different medium for communication appears.”70 Instead of restricting expression because of its content, the government should pursue less restrictive means to advance its interest, like media literacy programs and educating the public about potential harms of social media.71