As promised/threatened, I’m going to sketch some thoughts-in-progress as I prepare for Georgetown University’s upcoming event on “Social Media, Children, and the Constitution.” This is a niche topic (a very important niche topic), so my apologies if I fail to spell things out from square one for the general reader.
A dozen or so states have enacted age-verification laws for social media. Tennessee’s law, for example, requires a social-media company to verify the age of anyone who wants to have an account, and it forbids the social-media company from allowing a minor to become an account holder without a parent’s consent. The various state laws differ in their details—e.g., how they define the covered entities, what age requires parental consent, how age verification is to be done.
1. For purposes of the First Amendment’s guarantee of freedom of speech, one critical threshold question is whether an age-verification law for social media imposes a content-based restriction or is instead content-neutral.
Under First Amendment doctrine, a content-based restriction is generally subject to strict scrutiny: It is invalid unless it can be shown to be the least restrictive means of satisfying a compelling state interest. This is a very tough test. That’s why strict scrutiny is often said to be “strict in theory, fatal in fact.”
By contrast, a content-neutral law is subject to the more tolerant standard of intermediate scrutiny. It will satisfy the First Amendment if it advances important governmental interests unrelated to the suppression of speech and does not burden substantially more speech than necessary to advance those interests.
To date, most courts reviewing challenges to social-media age-verification laws have found them to be content-based. This recent article (“student note,” in law-review parlance) from the Harvard Law Review provides a good summary. In short, some courts have held that the designation of “social” content is itself content-based, and others have found that exemptions in the laws (e.g., for news or career-development sites) render them content-based.
As consequential as the distinction between content-based and content-neutral is, the Supreme Court has not always done a great job drawing a clear line. But I have difficulty understanding why the typical age-verification law is deemed content-based. As the Court put it in Ward v. Rock Against Racism (1989):
The principal inquiry in determining content-neutrality, in speech cases generally and in time, place, or manner cases in particular, is whether the government has adopted a regulation of speech because of disagreement with the message it conveys.
Age-verification laws for social media apply equally to all messages: A minor below the specified age can’t receive anything from the social-media platform. The legislatures have enacted the laws because of the addictive quality of social media, not because of disagreement with the substance of any messages. Similarly, while the definitions of covered entities and the exemptions from those definitions mean that the age-verification laws can be said to favor some speakers over others, the lines appear to be drawn on the basis of addictive quality, not content.
That said, the fact that many courts have ruled the other way suggests to me that I might be missing something.
The Harvard Law Review student note helpfully proposes that legislatures define covered social-media platforms by their exploitative features (“such as algorithmic feeds based on individualized data, infinite scrolling, push notifications”). That approach, which some states have taken, would make it unnecessary to include the exemptions that courts have found to trigger strict scrutiny.
2. Does a minor have the same First Amendment rights as an adult? Does the answer to that question turn on the age of the minor?
One question that challenges to these laws present is whether social-media companies are asserting their own First Amendment rights to communicate with minors or whether they are being allowed to assert the minors’ First Amendment rights. It’s my understanding (perhaps mistaken) that a speaker’s right to communicate with a listener is generally the correlative of the listener’s right to hear from the speaker. On that premise, I will skip past this question and jump to what the First Amendment rights of minors are.
The Court has long said that “minors are entitled to a significant measure of First Amendment protection.” In Brown v. Entertainment Merchants Ass’n (2011), Justice Scalia ruled for a five-justice majority that a California law that barred the sale or rental of violent video games to minors violated the First Amendment. But would the ruling have been the same if the bar applied only to those under 16? Or under 12? Or under 6? Who knows? The Court has never had occasion to spell out whether and when a child’s First Amendment rights ripen.
Brown also contains an interesting exchange between Justice Scalia and Justice Thomas on the free-speech rights of minors. In his dissent, Justice Thomas argued that the First Amendment’s freedom of speech “does not include a right to speak to minors (or a right of minors to access speech) without going through the minors’ parents or guardians.” In response (in his footnote 3), Justice Scalia acknowledges that it “is true enough” that “parents have traditionally had the power to control what their children hear and say”—in other words (as I understand it), that minors have no First Amendment rights in defiance of their parents. But, Scalia says, “it does not follow that the state has the power to prevent children from hearing or saying anything without their parents’ prior consent.” (His emphasis.)
Scalia’s general proposition that the state does not always have “the power to prevent children from hearing or saying anything without their parents’ prior consent” does not foreclose the possibility that it sometimes has that power. The federal Children’s Online Privacy Protection Act, which requires parental consent for the online collection of personal information about children under the age of 13 (and thus restricts their access to online sites), would appear to be one exercise of such power. Likewise, it might well be that in the specific context of social media, the government can require a parent’s prior consent before a minor—or a minor under 16, or a minor under 14—opens a social-media account.
If minors, or minors below a certain age, have no First Amendment right to open a social-media account without parental consent, then it’s difficult to see why corresponding age-verification laws would be subject to strict scrutiny. In particular, it shouldn’t matter whether the law is content-based. In his recent majority opinion in Free Speech Coalition v. Paxton (2025), Justice Thomas agreed that the challenged law “targets speech that is obscene for minors based on its communicative content”—in short, that the law was content-based. But, he explained, “where the speech in question is unprotected, States may impose ‘restrictions’ based on ‘content’ without triggering strict scrutiny.” (Emphasis in original.) Likewise here. I’d think that age-verification burdens for adults would survive intermediate scrutiny in this social-media context. (That of course wouldn’t mean that age-verification burdens in other contexts would be okay.)