(CN) — Georgia urged an 11th Circuit panel Tuesday to revive a law requiring parental consent before allowing minors to create social media accounts.
The request posed a complicated inquiry for the three-judge panel: Can states regulate online platforms? And if so, how without violating the First Amendment?
“The thing we are targeting is not content,” Georgia’s attorney, John Henry Thompson, told the court. “It is the psychological damage.”
However, based on the law’s long list of exclusions, the judges expressed concern that it does dictate speech based on its content, which could make it unconstitutional if not narrowly tailored to serve a compelling government interest.
The provisions at issue all hinge on the law’s definition of a “social media platform,” which is any “online forum that allows an account holder to create a profile, upload posts, view and listen to posts, form mutual connections and interact publicly and privately with other account holders and users.”
Senate Bill 351, also known as the “Protecting Georgia’s Children on Social Media Act of 2024,” says social media services would have to use “commercially reasonable efforts” to verify someone’s age.
Services would have to treat anyone who can’t be verified as a minor. Parents of children under 16 would have to consent to their children creating an account.
But it also includes several exemptions to the regulations, including, news, sports and entertainment sites; interactive gaming platforms; streaming services; public safety community groups; and professional networking sites.
Senior U.S. Circuit Judge Gerald Bard Tjoflat appeared sympathetic to the state’s interest in wanting to help parents protect the well-being of their children and determine what they are exposed to.
“I think that is very heavy here,” said Tjoflat, a 96-year-old Gerald Ford appointee currently tied as the longest-serving federal judge.
In a related major decision last year, the U.S. Supreme Court upheld a Texas law requiring age verification for websites where more than one-third of content is deemed “harmful to minors,” such as pornography.
U.S. Circuit Judges Robert Luck and Kevin Newsom, both Donald Trump appointees, contemplated requiring a deeper inquiry into which of the social media sites that Georgia seeks to regulate may contain such harmful content.
Newsom said “rogue” and “hybrid” platforms like Reddit and X deserve to be categorized differently than “conventional” platforms such as Meta.
“Don’t we need more of a record to understand how it would cash out to everybody?” Newsom asked.
Tech lobbyist NetChoice — which represents members like Meta, Google, Amazon and X — asserts that requiring users to verify their ages to become account holders imposes a burden on access to speech in violation of the First Amendment.
However, Georgia claims the law is only minimally burdensome and does not regulate free speech, but instead how children can enter contracts with international corporations.
In its view, age verification laws apply only if a platform requires users to create an account, which invariably requires agreeing to terms of use.
“Social media is making kids less attentive, mentally ill, emotionally stunted, unable to sleep, more likely to attempt suicide and vulnerable to sextortion and sexual predation. And none of it is a secret. Social media companies have known about those dangers while, in some instances, suppressing that information and still acting to exploit children,” Georgia Attorney General Christopher Carr wrote in the appellant brief.
Under the law, social media companies would also be limited in how they could customize advertisements for children under 16 and how much data they could collect on those children. The law would prohibit services from using data other than location and age when presenting advertisements to a minor.
A handful of states have enacted similar laws aimed at protecting minors online, often by requiring some form of age verification or parental consent for minors seeking to use social media. NetChoice has challenged at least eight other state laws in Texas, Ohio, Arkansas, California, Utah, Florida, Mississippi and Tennessee, nearly all of which are currently enjoined on a preliminary or permanent basis.
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