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Why red states are coming for big tech

In the fight over safety and free speech, who wins?

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Robert Neubecker for Deseret News

It’s a rare moment nowadays when President Joe Biden can get both Republicans and Democrats on their feet for a standing ovation. But that’s exactly what he did when he took on Big Tech in his State of the Union address earlier this year, saying, “We must finally hold social media companies accountable for the experimenting they’re doing, running children for profit.” 

What is the Social Media Child Protection Act?

Biden’s comments came just days after Utah Congressman Chris Stewart put forth new federal legislation — the Social Media Child Protection Act — which would make social media platforms off-limits to children ages 15 and younger.

It’s unclear which specific social media platforms the legislation targets, or if it targets social media altogether. The bill would also allow parents to file civil suits against social media companies that don’t enforce age limits. And, in Texas, state Rep. Jared Patterson is seeking even tougher restrictions — under his proposed law, no one under the age of 18 would be able to use social media. 

How can social media affect your mental health?

Both Patterson and Stewart referenced mental health concerns. “We have never, ever seen a more anxious and more depressed (generation) and a generation that is contemplative of suicide like we’ve seen now,” says Stewart.

On the heels of these two federal bills comes state legislation from Utah — the first in the nation to be signed into law — that restricts when children under age 18 can use social media, requires age verification or parental consent for the use of social media and allows lawsuits to be filed against apps for harming underage users. Time will tell if these state laws will last. Tech companies are expected to sue the state when they take effect in 2024. 

It’s another example showing how intense the issue has become in the country, and just how quickly legislation is moving and shifting to find solutions. The average age a child gets a cellphone now in America is between 11 and 12, according to Stanford Medicine. Both smartphone and social media use are positively correlated with a variety of mental health issues among youth, including self-injury and suicide.

While it’s difficult to tease out the exact relationship between social media use and mental health problems, researchers point to a general rise in depression, anxiety and suicide attempts during the years that coincide with the rise of smartphones and social media. This is true for both boys and girls.

What is the Children’s Online Privacy Protection Act of 1998?

While compliance with the federal privacy law called the Children’s Online Privacy Protection Act means that social media platforms restrict usage to those ages 13 and above, many say that the law isn’t enough to protect our nation’s youth. 

“Any law that is going to try to limit speech access, even to protect kids or other vulnerable people, is subject to the strictest scrutiny. Kids have speech rights, too.”

The child privacy act is a 1998 federal law that, as the name suggests, was supposed to protect children’s privacy by limiting data collection on those 12 and under. But it has been criticized as being unenforceable, largely because if a child lies about their age, the website or platform can’t be held accountable.

In other words, it puts the onus on the users themselves. “Update: COPPA is Ineffective Legislation!” barks the title of a 2010 article in the Northwestern Journal of Law and Social Policy. It’s rare to find such brevity and directness in academia; even rarer to find an exclamation point in a scholarly journal. This all suggests that the law must, indeed, be really unhelpful. 

This brings us to today. 

But even if new efforts on the federal and state level enjoy bipartisan support and are enforceable, such legislation could run afoul of the First Amendment, legal experts say. And some observers believe that Republicans’ attempts to at once rein in Big Tech while simultaneously asserting free speech rights in the same arena reflect the party’s increasingly fraught relationship with the First Amendment. 

The social media age limit debate

While at first glance raising the age limit for social media access doesn’t intuitively seem to conflict with free speech, previous attempts to implement age-related restrictions to content have been struck down because they violated First Amendment protections. “Every attempt by Congress to regulate the internet to protect children has been ruled unconstitutional,” says Mark Kende, a law professor and director of Drake University’s Constitutional Law Center.

A 2022 congressional report on restricting children’s access to internet content also pointed to Brown v. Entertainment Merchants Association, a case that took on California legislation banning the sale of violent video games to minors. That law was overturned by the Supreme Court both on First Amendment grounds and because the link between the content and harm to children wasn’t sufficiently proven.

Supreme Court Justice Antonin Scalia noted in the ruling that the state of California relied on psychologists “whose studies purport to show a connection between exposure to violent video games and harmful effects on children. These studies have been rejected by every court to consider them, and with good reason: They do not prove that violent video games cause minors to act aggressively.” There’s an old adage from statistics that “correlation doesn’t equal causation” — it’s safe to assume that legislation based on the argument that social media is psychologically harmful to children would be held to a similar standard and would have to prove that link as well. 

Social media age limits take a slightly different tack than previous legislation because they aren’t content-based restrictions, per se, but they could come with the same pitfalls when it comes to enforcement. The age restrictions set by new legislation could be analogous to the example of teenagers seeing R-rated movies in a theater — it depends on how stringent theaters enforce whether or not kids get into the screening room. But, again, it depends on the legislation. Patterson’s bill, for example, would require users to upload both their driver’s license and a second photograph. If a teenager simply lied about their age on the platform, unlike at a movie theater, it would be hard to circumvent in this case.

“For years, the Republican Party was super favorable toward corporate speech. “(But now) we find the GOP pushing back hard and taking the speech limiting position.”

But whether or not such legislation will make the constitutional cut will largely depend on how the law is written, according to legal experts. “The devil is very much in the details,” says Alan Rozenshtein, an associate law professor at the University of Minnesota who was formerly affiliated with Harvard University’s Berkman Klein Center for Internet and Society. 

Kende agrees. “Let’s just assume it’s done in a typical government clunky, imperfect fashion where they try to say kids under a certain age are not allowed to access social media. … The bottom line is, yes, it would be very problematic,” says Kende, explaining that not only would such a law be subject to strict scrutiny — which it would likely fail — there’s an additional obstacle: children have First Amendment rights, too.  

While most parents who are concerned about what their children are exposed to on social media are thinking less about what their kids are saying and more about what they’re consuming, Kende noted that trouble would likely come from limiting children’s rights surrounding freedom of expression. “Any law that is going to try to limit speech access, even to protect kids or other vulnerable people, is subject to the strictest scrutiny,” says Kende, quoting former Supreme Court Justice Anthony Kennedy. “Kids have speech rights, too.” 

Kende refers to Tinker v. Des Moines, as “an example of the basic premise that kids don’t lose their speech rights just because they’re kids.” In 1965, a group of students were suspended after wearing black armbands to their public junior high school in protest of the Vietnam War. Three years later, the Supreme Court ruled in a 7-2 decision that the students’ First Amendment rights had been violated.

Republicans take on Big Tech

Republican attempts to take on Big Tech without integrating positions on First Amendment rights are actually part of a larger pattern of switch-ups the party has presented when it comes to litigation and legislation, says Sarah Haan, a law professor at Washington and Lee University. She notes the example of the party’s take on corporate speech. “For many years, the Republican Party was super favorable toward corporate speech,” says Haan. “But then, in the last couple of years, we started to see companies like Disney take political positions that are in opposition to GOP policies and talking points. And so what do we find in that situation? We find the GOP pushing back hard and taking the speech limiting position.”

This flux on First Amendment rights indicates an about-face that Democrats and Republicans have historically held when it comes to invoking freedom of expression. “Until very recently, it was conservatives who were most associated with, and responsible for, the deregulatory tilt of the First Amendment and its embrace of a privately-owned and operated marketplace of ideas.

Progressives, meanwhile, were the primary critics of the expansive discretion granted to powerful corporate actors,” wrote legal scholars Genevieve Lakier and Evelyn Douek in “First Amendment Politics Get Weird,” published by The University of Chicago Law Review online. But now, Lakier and Douek say a backlash against the tech industry has seen these traditional alignments inverted, leaving Republicans paradoxically calling for the sorts of limits to free speech that used to be associated with liberals. That conservatives today lambast Big Tech for censoring their views, Lakier says, represents “a rich historical irony.” 

Indeed, the rhetoric has become so ironic that some observers are cynical about GOP efforts around social media age limits. It’s not a stretch to believe that a politician might bring forth legislation that they “probably know is constitutionally problematic with reliance on the fact that the ACLU (American Civil Liberties Union) will go to court and get it declared that way,” Kende says. “So they get the benefit of both things. They get the political plus of saying, ‘Look what I did to protect our children’ and then they get to condemn the ACLU or some court (or) judge for doing something.”

But some members of the GOP are themselves cognizant of the idea that limiting social media access could be construed as a paradoxical attempt to have one’s freedom of expression cake while eating it, too. 

Speaking of the federal legislation he introduced in February, Stewart notes that an attempt to pass the Social Media Child Protection Act isn’t an attempt to restrict certain views. “We’re just restricting access broadly for a group of people that we think are vulnerable and not adults,” he says. “But I understand people’s concerns and, frankly, I share them.”   

This story appears in the May issue of Deseret Magazine. Learn more about how to subscribe.