Eleventh Circuit Greenlights Florida and Georgia Social-Media Laws Protecting Kids—Part 1

In two important rulings yesterday and today, a unanimous Eleventh Circuit panel, in opinions by Judge Kevin Newsom, rejected First Amendment challenges to laws in Florida and Georgia that protect children from social-media addiction. Specifically, the court in each case vacated a preliminary injunction that a district court had issued against enforcement of the law. The ruling on the Florida law is Computer & Communications Industry v. Uthmeier. The ruling on the Georgia law is NetChoice v. Attorney General.

I’ll summarize the Florida ruling in this post and the Georgia ruling in Part 2.

Florida’s HB3 applies to social-media platforms that use “addictive features” and on which at least 10% of daily active users under 16 years old spend an average of at least two hours per day. It requires those platforms to prohibit anyone under the age of 14 from creating an account and to obtain parental consent to allow kids aged 14 and 15 to create an account.

On the Internet trade organizations’ as-applied challenge, Judge Newsom explains that HB3 likely operates in a content-neutral manner. (See pp. 24-31.) (The opinion includes the “likely” qualifier here and elsewhere because the panel is reviewing a preliminary injunction. I would not read that qualifier to imply uncertainty about the merits.)

First, HB3 is facially content-neutral:

It regulates social-media platforms based on their functional capabilities and features, not the content they communicate. The law neither references the substance of the speech on any platform nor draws distinctions based on it. Put differently, HB3 applies to platforms wholly without regard to the topics discussed or the ideas or messages conveyed on them.

Second, its justification is also content-neutral: Its purpose—to “protect children from social-media addiction and associated mental-health harms”—is “unrelated to the content of expression” on any given platform, and it doesn’t “reflect disagreement with the message such speech conveys.” (Cleaned up.)

HB3 is therefore subject to intermediate scrutiny (rather than the strict scrutiny that would apply to content-based regulation). It satisfies the two core requirements of intermediate scrutiny. It advances an important governmental interest—protecting minors—that is unrelated to the suppression of free speech. (Pp. 32-33.)

HB3 also is appropriately tailored to advance that interest. (Pp. 33-39.) It imposes no limitations on those 16 and older. It doesn’t bar kids from using a parent’s account. It targets only those platforms to which many minors are already addicted. A platform can avoid its restrictions by refraining from using addictive features and algorithms.

It’s true that the age-verification requirement that the Supreme Court upheld in Free Speech Coalition v. Paxton applied to speech (pornography) that was unprotected as to minors. But the Court didn’t purport to establish a constitutional outer limit, and everything it said about an age-verification requirement supports the content-neutral requirement here. (Pp. 38-39.)

Judge Newsom then turns to the Internet trade organizations’ facial challenge to HB3. He finds that they have failed to meet their burden of showing that a substantial number of HB3’s applications are unconstitutional, judged in relation to its plainly legitimate sweep. (See pp. 40-46.)