States are Stepping Up to Legislate Against Social Media – Will it Work?

Social media companies have historically been shielded from all liability connected with the content appearing on their platforms as a result of Section 230 of The Communications Decency Act. [1] The inability to hold social media companies, like Meta and TikTok, legally accountable for content has led to increasing frustration and outrage, especially as rates of suicide, self-harm, and depression continue to increase in young girls. Lawsuits against social media companies have generally failed due to the blanket protections of Section 230. Now, state legislatures are enacting laws to try and turn the tide.

Utah recently became the first state to pass a set of laws known as the “Social Media Regulation Amendment,” which aims to strictly limit access to social media for anyone under the age of 18 without parental consent and to allow parents access to the social media accounts of their children[2]. It also prohibits platforms allowing private messaging between minors and those outside of their friend list, among other structural changes to how social media sites function. The laws are set to go into effect in 2024.

Following in Utah’s footsteps, Montana just passed legislation which would totally ban TikTok by prohibiting app stores from providing TikTok to users starting in 2024[3]. If signed into law by Montana Governor Greg Gianforte, the TikTok ban would take effect in January 2024.

California now has legislation on the books that requires social media platforms that may be used by children to maintain high privacy settings by default and prohibits the collection of personal information of minors in an effort to regulate advertising targeting minors on social media[4]. Around all of these new laws are questions regarding enforceability and constitutionality, specifically whether this type of legislation violates the First Amendment. The theory behind these laws seems to be: if you can’t sue them, ban them or severely restrict access to them.

What remains to be seen is whether such laws can or will be enforced. Currently, it is the practice for social media companies to restrict access to their sites by children under 13 in order to comply with the federal Children’s Online Privacy Protection Act. Those age restrictions have not been effective because there are easy workarounds and no strict penalties on companies. Some states like Arkansas, Texas, Ohio, Louisiana, and New Jersey have introduced legislation that imposes stronger penalties on social media companies and there have been calls for stricter age verification methods as well.

In an effort to reduce children circumventing age restrictions, social media platforms may be required to ask for identification to be uploaded to verify their users are of an appropriate age. As a result, and as more identity verification is required, legal issues around privacy standards are raised.

Constitutionally as well, laws that prohibit children from using social media without parental consent could infringe on their First Amendment rights, without a compelling state interest in doing so. This is one of the arguments big tech companies have latched on to in lawsuits against some of the states where the most restrictive laws have been enacted.

These lawsuits are ongoing as more states line up to include more restrictions on social media companies and their young users. The social media landscape could be fundamentally changed based on the passage of these laws and how courts decide these issues. It is long past time that the free pass provided under Section 230 is revoked, but how to do that while also upholding privacy and free speech rights are issues that are just beginning to be addressed.

This article is intended as a general discussion of these issues only and is not to be considered legal advice or relied upon. For more information, please contact RPJ Partner Nicole Page who counsels clients in areas of entertainment, employment and intellectual property. Ms. Page is admitted to practice law in New York and the United States District Courts for the Southern and Eastern Districts of New York.

[1] 47 U.S.C. § 230(c)(1)

[2] S.B. 152, 2023 General Session (Utah 2023) SB0152 (utah.gov)

[3] S.B. 419, 68th Legislature, 2023 Re. Session (Montana 2023) SB0419.pdf (mt.gov)

[4] A.B. 2273, Chapter 320, 2022 (California 2022) AB2273 (ca.gov)