Protecting Kids on Social Media Act: Amended and Still Problematic
Senators who believe that children and teens must be shielded from social media have updated the problematic Protecting Kids on Social Media Act, though it remains an unconstitutional bill that replaces parents’ choices about what their children can do online with a government-mandated prohibition.
As we wrote in August, the original bill (S. 1291) contained a host of problems. A recent draft of the amended bill gets rid of some of the most flagrantly unconstitutional provisions: It no longer expressly mandates that social media companies verify the ages of all account holders, including adults. Nor does it mandate that social media companies obtain parent or guardian consent before teens may use social media.
However, the amended bill is still rife with issues.
The biggest is that it prohibits children under 13 from using any ad-based social media. Though many social media platforms do require users to be over 13 to join (primarily to avoid liability under COPPA), some platforms designed for young people do not. Most platforms designed for young people are not ad-based, but there is no reason that young people should be barred entirely from a thoughtful, cautious platform that is designed for children, but which also relies on contextual ads. Were this bill made law, ad-based platforms may switch to a fee-based model, limiting access only to young people who can afford the fee. Banning children under 13 from having social media accounts is a massive overreach that takes authority away from parents and infringes on the First Amendment rights of minors.
The vast majority of content on social media is lawful speech fully protected by the First Amendment. Children—even those under 13—have a constitutional right to speak online and to access others’ speech via social media. At the same time, parents have a right to oversee their children’s online activities. But the First Amendment forbids Congress from making a freewheeling determination that children can be blocked from accessing lawful speech. The Supreme Court has ruled that there is no children’s exception to the First Amendment.
Children—even those under 13—have a constitutional right to speak online and to access others’ speech via social media.
Perhaps recognizing this, the amended bill includes a caveat that children may still view publicly available social media content that is not behind a login, or through someone else’s account (for example, a parent’s account). But this does not help the bill. Because the caveat is essentially a giant loophole that will allow children to evade the bill’s prohibition, it raises legitimate questions about whether the sponsors are serious about trying to address the purported harms they believe exist anytime minors access social media. As the Supreme Court wrote in striking down a California law aimed at restricting minors’ access to violent video games, a law that is so “wildly underinclusive … raises serious doubts about whether the government is in fact pursuing the interest it invokes….” If enacted, the bill will suffer a similar fate to the California law—a court striking it down for violating the First Amendment.
Another problem: The amended bill employs a new standard for determining whether platforms know the age of users: “[a] social media platform shall not permit an individual to create or maintain an account if it has actual knowledge or knowledge fairly implied on the basis of objective circumstances that the individual is a child [under 13].” As explained below, this may still force online platforms to engage in some form of age verification for all thei
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