Can states’ social media laws stand up to scrutiny?

This is the second of two articles on states’ efforts to regulate social media. You can find the first article here.

When Idaho Gov. Brad Little addressed the legislature this January, he demanded action. At the top of his list, in addition to human trafficking, the war on drugs and open borders: social media.

During his State of the State address, Little called social media an  “obvious reason for the decline in youth mental health.” He said social media is addictive, can lead to cyberbullying, “replaces quality time,” and makes people “compare themselves to impossible, artificial standards for looks and lifestyles.” He called for action, as have many governors as they wrestle with the youth mental health crisis.

Utah Gov. Spencer Cox was the first in the nation to sign legislation in March 2023 restricting young people’s use of social media platforms. Cox then signed amended legislation earlier this year repealing and replacing that 2023 bill under legal pressure. 

Arkansas was the next state to enact such a law; Ohio followed in July 2023. The drumbeat of legislation has accelerated this year. Arkansas, Florida, Mississippi, Colorado, Texas and New York’s governors all signed social media bills into law, while Idaho’s legislation is pending. Others could follow, including California.

None of these laws have yet taken effect. Utah’s amended Minor Protection in Social Media Act is effective Oct. 1 and others are on hold pending legal challenges. Texas' law could take effect Sept. 1 or could be subject to a preliminary injunction.

But the bills themselves show how seriously lawmakers appear to take the issue, and how they are approaching it through a combination of technology, rules and regulations while navigating sometimes aged state laws in need of a refresh for the modern era. And the states' varied approaches illustrate the limits of the policy tools currently available for regulating online activity.

Age Verification Tech a Hallmark 

One unifying factor in all the laws is a reliance on age verification technology, something that has taken hold in Europe and elsewhere but has yet to overcome skepticism on these shores because of the U.S.’s lack of comprehensive data privacy legislation protecting information provided for age verification. 

Opponents argue that requiring age verification would force tech services to store information for an undisclosed amount of time, and so make them sitting ducks for cyberattacks. And tech companies themselves have struggled in the face of declining public trust, especially as they have been targets of cyber espionage themselves.

But many of the new youth social media laws are vague on what that age verification could look like. Utah initially left it up to the Division of Consumer Protection to “establish acceptable forms or methods of identification.” Its amended text puts the onus on social media companies to verify whether a user is a minor.

Florida’s law, meanwhile, says social media platforms can use “any commercially reasonable method of age verification.” It’s a similar story in Mississippi, which mandates that platforms “shall make commercially reasonable efforts to verify the age of the person creating an account with a level of certainty appropriate to the risks that arise from the information management practices of the digital service provider.”

Arkansas’ law requires that social media companies “use a third party vendor to perform reasonable age verification” and that any identifying information be deleted once a user has access. If not, those platforms face penalties of $2,500 per violation paid to the state and may be forced to pay other damages to the user’s family.

And Texas went in a different direction by requiring parental consent for a minor to open an account. Parents could give their consent via a toll-free telephone number, a video conference call or through government-issued identification documents, on the understanding that information would then be deleted.

Veronica Torres, worldwide privacy and regulatory counsel and data protection officer at age verification company Jumio, said in an interview earlier this year that federal data privacy legislation would create “a far better environment” for age verification.

The Right to Sue 

Most states have left it up to their attorneys general to enforce the law, rather than offer parents or guardians the right to sue social media companies.

In Ohio, for example, Ohio Attorney General Dave Yost in a statement last year, the procedure for addressing parent complaints related to their children’s social media use is “no different” than any other time when an Ohioan feels they have been wronged by a company: If parents lodge a complaint with their attorney general’s office, that office would then be responsible for starting enforcement proceedings against social media platforms. New York’s attorney general can seek civil penalties of up to $5,000 per violation of the law, which is similar to other states.

Many states require social media companies to delete a child’s account upon request within a certain timeframe, depending on the state.

Florida’s law, for example, deems a social media company’s failure to honor account termination requests an “unfair or deceptive act or practice” that can result in legal action against the platform. Civil penalties could total up to $50,000 per violation, per the bill’s text. 

Utah, however, does allow individuals to sue social media companies they believe have violated youth social media laws; successful plaintiffs are entitled to receive court costs as well as $2,500 per violation.

But that number could jump if the plaintiffs can prove they suffered “financial, physical, and emotional harm,” and if the court “determines that the harm is a direct consequence” of those violations. 

Legal Arguments

But any parental lawsuits are likely months if not years off. With the exception of Utah, all of the recent legislation has been blocked from implementation by judges, pending lawsuits designed to strike them down as unconstitutional.

In response to a lawsuit brought by tech industry advocacy group NetChoice, the Ninth Circuit Court of Appeals blocked several provisions of California’s California Age-Appropriate Design Code Act designed to protect children from “potentially harmful” content. The court found that other provisions, including data minimization requirements and privacy protections being set at their highest by default, are likely constitutional. Judges sent the case back to the lower courts for more study.

“The court recognized that California’s government cannot commandeer private businesses to censor lawful content online or to restrict access to it,” Chris Marchese, director of the NetChoice Litigation Center said in a statement.

NetChoice has led the way on other litigation against states looking to regulate social media. Utah’s amended bill came in the face of a NetChoice lawsuit, while the group has also filed suit against Arkansas, Mississippi and Ohio for their restrictions. All three laws are on hold temporarily until all litigation is resolved.

NetChoice, which is backed by Google, Facebook parent Meta and X, formerly Twitter, argued in its litigation that state laws violate the First Amendment by mandating that social media platforms collect data on their users to grant them access. And NetChoice has argued that the bills—contrary to elected officials’ assertions—take rights away from parents as the government would be telling them how to parent their households.

“If HB 1126 ultimately takes effect, mandating age and identity verification for digital services will undermine privacy and stifle the free exchange of ideas,” Marchese said in a July statement after a judge temporarily blocked Mississippi’s law. “Mississippi also commandeers websites to censor broad categories of protected speech, blocking access to important educational resources. Mississippians have a First Amendment right to access lawful information online free from government censorship.”

Other groups, including the Foundation for Individual Rights and Expression, have filed suit against Texas’ legislation and others. Florida is braced for legal action against its law too, although as of now, no suits appear to have been filed.

And there is evidence that the bills may survive legal scrutiny. In a July decision, Robert Shelby, chief United States district judge of the United States District Court for the District of Utah, ruled that Utah’s age verification requirements are constitutional and are not preempted by the Communications Decency Act, the federal law regulating online pornography.

NetChoice had argued that requiring social media companies to verify user ages fell foul of the federal law’s stipulation that platforms cannot be held liable for user-posted content, a source of major debate in Congress for years. But Shelby disagreed.

He found that the law does not impose liability on platforms. “The liability NetChoice members may face for violating the provisions arises solely from the members’ use of the design features,” he continued.