How to manage young people's social media use is a big question, with many factors at play, including the well-being of minors, the logistics of monitoring online activity and their constitutional rights. In Ohio, lawmakers are trying to take this matter into their own hands. One law limiting social media access is currently on hold, after a federal court blocked it as an unconstitutional restriction on First Amendment rights.
That decision is now being appealed by Attorney General Dave Yost. This year, two new bills have been introduced that would limit children's access to social media in different ways and bring app stores into the equation.
The topic is the first in our new series “Law of the Land” which explores how the law impacts you life. Below is a portion of the conversation with constitutional law professor Jonathan Entin with the Case Western Reserve University School of Law.
Q: Do constitutional rights apply to people under the age of 18?
A: Yes, they do. But they may apply in somewhat different ways for people under 18 than to adults. But the Supreme Court has made clear, for example, that the First Amendment protects children as well as adults.
The Fourth Amendment about search and seizure protects children as well as adults. The scope of the protection for children may be somewhat more limited, but the Constitution does protect kids.
Q: What triggers constitutional protection of rights like the First Amendment right to freedom of speech, for example? In what scenarios can we claim that right?
A: The First Amendment and other constitutional rights apply against actions by the government, actions by the federal government. Actions by the state of Ohio, Cuyahoga County, City of Cleveland, for example. But the Constitution does not protect us against actions taken by private parties.
For example, some big employers like Progressive Insurance or the Cleveland Clinic. Those are private entities. For that matter, Case Western Reserve University is a private institution. And so, I don't have First Amendment rights against the university. We might have other kinds of legal rights against private entities, but those rights come from other places in the law, not from the Constitution.
Q: In a scenario like this, when we're talking about First Amendment rights, if the state makes a law, for example, that might trigger protection. But if a social media app makes its own rules, does that trigger protection?
A: There are scenarios under which if the private party like the ISP, does something because the federal government twists its arm in that sort of situation, you might say that the private party is acting as an arm or an agent of the government, but it's pretty hard to make that kind of showing. So generally, if an ISP makes rules, the First Amendment will not protect you. If you think that those rules are too extreme. Okay. And we're talking about lemons here. So, there are lemons in certain cases.
Q: So what kind of limits on speech specifically are okay for the government to impose. This is on people in general, not necessarily just minors.
A: Generally, the kinds of restrictions the government can impose are kind of neutral time, so-called time, place and manner regulations that is housekeeping rules, like you can't use a loudspeaker in a residential neighborhood at 3:00 in the morning, for example, but the government can't make can't regulate speech in a way that favors one side of the debate, as opposed to another. It can't play favorites.
So, for example, if I want to hold a parade down Euclid Avenue, the city of Cleveland can require that I get a permit, but the permit system has to be neutral housekeeping, otherwise I can't. The city can't say, oh, you can have your parade, if you like us, but not if you don't like us. But the city can say we can have only one parade on Euclid Avenue at a time and say, first come, first served.
Q: Now, are there different limits that are okay just for minors?
A: There are some limits that can apply to minors that couldn't apply to adults. I mean, the classic case about minors, free speech rights says that school authorities can regulate student speech if that speech poses a danger of a material and significant disruption of the educational process. That's a lot of words. But just to distinguish, the government doesn't get to regulate the speech of adults if that speech poses a material and significant risk of disruption. Generally, the Supreme Court says that the First Amendment remedy for bad speech or disruptive speech is more speech, unless we're in a dire emergency.
Q: What are the implications of having two tiered rules when it comes to freedom of speech for adults and for minors.
A: Well having different rules for minors recognizes that minors are kids. They're not fully mature. Now some kids are more mature than others, and there may be some kids who may be more mature than adults. So, the issue isn't that we necessarily have somewhat different rules for minors as for adults, it's that if you're close to that line and you're an adult, you may be required to do things to prove that you're an adult, or at least that you're not a minor. That might discourage you from engaging in some kinds of protected speech.
And so, the issue is how much are people going to be chilled or deterred? How much are adults going to be chilled or deterred from engaging in First Amendment protected activity? If they have to jump through a bunch of hoops that are supposed to apply to kids but may also sweep up adults.
And so much of First Amendment law, not all of it by a long shot, but multiple First Amendment law focuses on the extent to which a government regulation of speech might chill or deter people from engaging in that speech.
And the cases that the Supreme Court has dealt with in lower courts have dealt with, dealing with, say, internet regulation, have emphasized the question of how much speech, how much protected speech for grown-ups is being deterred because the government is trying to protect kids, maybe in a in a well-motivated way, but nevertheless in a way that says, well, there are costs to this regulation as well as benefits.
And so we have to assess both the costs and the benefits in deciding whether a particular regulation is acceptable.
Q: I want to look at the law dealing with kids and social media app access that was passed as part of the budget here in Ohio in 2023.Now, this is the blocked law. It's called the Parental Notification by Social Media Operators Act. And it is on appeal, the blocking of that law. But it requires social media companies like Meta, which owns Facebook and Instagram, to verify a user's age and get parental consent for children under 16 to use those apps. It was blocked by the U.S. District Court for the Southern District of Ohio. Why did the court block that?
A: The court said that this is straight out regulation of speech. I mean, this is not a law that applies only with respect, say, to obscene speech, which is not protected by the First Amendment. This applies across the board. And because it is aimed at a category, a big category of protected speech, when the government is regulating on the basis of the content of the speech or that target audience, the government has to satisfy a really stringent legal test. The government has to show you the fact that it has a really, really, really important interest and that this law is basically the only way, as a practical matter, that the government can satisfy that really, really important interest.
Now, the judge, the district judge, said the government didn't meet that test because there are lots of spillover effects that go beyond the stated purpose of the law.
Now the state is arguing that this law doesn't regulate on the basis of content. And on appeal, the state is going to use an intervening U.S. Supreme Court decision from last April, which upheld a Texas law that required internet sites to obtain confirmation of age if they have sexually oriented material that is inappropriate for minors.
The Supreme Court in that case said this isn't really a content based regulation of speech. It's really a kind of housekeeping matter where this government doesn't automatically win. It still has to satisfy a more than usual, test. But not as strict as the test that we talked about before. Like the really, really important interest.
And so, the state is going to argue on appeal. I'm sure it is arguing on appeal that its law is like the Texas law that the Supreme Court upheld. But Ohio law and some other state laws actually go beyond sexually oriented material covers pretty much all material that's aimed at children.
And so, the challenges of this law are going to say, yes, the Supreme Court said what it said, but that doesn't really help the state. And we'll see what the Court of Appeals says to that.
You can hear the rest of Stephanie Haney’s interview on bills proposed in the Ohio Statehouse that deal with access to social media sites by users under the age of 18 by listening in the player at the top of the page.
AI used to generate the transcript.
Guests:
Jonathan Entin, Professor of Constitutional Law, Case Western Reserve University School of Law
