Third Parent: The State, Social Media, and Children

Recently, Florida passed House Bill 3 (HB3) which consists of three main parts. First, it prohibits Florida minors under the age of 13 from owning a social media account and requires the deletion of any social media accounts not compliant with that requirement. Parental consent is required for 14 or 15-year-olds to have a social media account. Second, it requires companies that knowingly publish material harmful to minors to take steps to verify it is not being accessed by minors. Third, it allows Florida to issue civil penalties against companies that knowingly violate the bill's requirements. [1] The bill would go into effect in 2025, giving companies almost a year to come into compliance, or face the risk of financial penalties. [2]

HB3 represents the latest in a similar series of bills from five other states. [3] However, a federal judge placed a temporary halt on the Arkansas bill, citing that the law was overbroad. [4] Similarly, a different federal judge placed the same restriction on an Ohio bill, reasoning that it may infringe on First Amendment rights while also being over-broad. [5] These cases represent the challenges of any legislature attempting to regulate social media or any internet usage by minors. 

Freedom of speech is held as a fundamental right which is understood to require a higher degree of protection from potential government encroachment. While laws placing restrictions on fundamental rights have been enacted, they demand a higher level of scrutiny from the courts. [6] State legislatures must be very conscious and specific in their wording. As seen in Arkansas and Ohio’s bills, failing to provide specific limitations to the First Amendment will lead to those bills' enactment being halted.

Florida's HB3 may face similar challenges in the near future. Under HB3, websites or apps that are substantially made up of material that may be harmful to minors must verify the age of anyone attempting to access the material. [7] That definition asks the question of what is harmful to minors. This is often interpreted to mean sexually explicit material. [8] However, companies may err on the side of caution when defining harmful material to avoid the risk of monetary fines. Would websites and apps that contain news on sensitive topics have to use age verification? News about terrorism or sexual assault could certainly be construed as harmful to minors, as these can be traumatic topics. Yet, actually preventing minors from being able to even see headlines about these topics is a bold step for a government to implement. 

Viewing these bills with the widest lens possible, they ask the question of who is responsible for society's children and to what extent. Parents are an obvious answer, but to what extent are children's wellbeing the government's responsibility? Governor DeSantis cited the harms that social media can have on children while maintaining that HB3 would give parents more control over the ability to protect their children. [9] Yet, Washington v. Glucksberg supported the idea that parents have a fundamental right to dictate how their children are raised. [10] This would include preventing their children from having a social media account until they see fit. HB3 and similar laws represent the government intervening in minors' lives as a parental figure. Courts must decide whether that violates the First Amendment or the Due Process Clause in the future.

[1] H.B. 3, 2024 Legislature, (Fl. 2024).

[2] Shawn Nottingham, Brian Flung, Florida governor signs law restricting social media access for children, (March 25, 2024, 1:53 PM), 

https://www.cnn.com/2024/03/25/tech/florida-social-media-law-age/index.html.

[3] Id.

[4] NetChoice v. Griffin, Ar. 5:23-cv-05105-TLB (2023).

[5] NetChoice v. Yost, Oh. 2:24-cv-00047 (2024).

[6] Legal Information Institute, fundamental right, (March 2023), https://www.law.cornell.edu/wex/fundamental_right. 

[7] Supra note 1.

[8] Nottingham, Flung, supra note 2.

[9] Press release by Governor DeSantis (Fl.), Governor DeSantis Signs Legislation to Protect Children and Uphold Parental Rights (March 25, 2024) (https://www.flgov.com/2024/03/25/governor-desantis-signs-legislation-to-protect-children-and-uphold-parental-rights/). 

[10] Washington v. Glucksberg, 521 U.S. 702 (1997).