States’ efforts to regulate social media will face greater scrutiny in 2024

After going largely unregulated for so long, social media platforms garnered a lot of attention in 2023 as states attempted to address an ongoing youth mental health crisis and, in the case of Chinese-owned TikTok, confront what many see as a national security risk.

Come the new year, those efforts will be under a magnifying glass. Many of the laws have been challenged in court for violating First Amendment rights, among other things.

Take Utah’s restrictions on minors’ use of social media. It is the subject of a just-filed lawsuit from the open internet advocacy group NetChoice. They are asking a federal court to overturn the law and stop it from taking effect in March as the case works its way through the courts.

The law in Utah requires social media platforms to verify users’ ages, get parental permission before minors’ use their apps and allow parents to control the content their child views, among other rules. The governor’s office declined to comment on the lawsuit. 

But NetChoice, which noted it has already been successful in stopping Arkansas and California from imposing similar restrictions on minors’ social media use, said Utah’s legislation is an unconstitutional attack on residents’ First Amendment rights and is also guilty of using “sweeping, undefined and fatally vague terms.”

In a statement accompanying the lawsuit, Chris Marchese, director of the NetChoice Litigation Center, said without accompanying efforts to better educate young people about social media, Utah’s law is another example of legislators using the “forceful clutch of government control” to restrict residents’ internet usage.

The lawsuit is the latest legal action against a state’s efforts to regulate minors’ social media activity, a trend that has accelerated in recent years. 2024 will be crucial in seeing whether any of the challenged laws will be allowed to stand.

Nevertheless, state lawmakers appear undeterred. A bill being debated in New Jersey would require age verification and parental or guardian consent for a minor’s use of social media. It would also ban what it calls “certain messaging” between adults and minors on social media platforms.

Meanwhile, Montana’s proposed first-in-the-nation statewide ban on TikTok is on hold after a federal judge granted a temporary injunction against it. The law was due to go into effect on Jan. 1.

In his ruling, U.S. District Judge Donald Molloy said that the law violates the First Amendment’s protection of free expression and warned Montana against involving itself in foreign policy, which is reserved for the federal government.

“Despite the State’s attempt to defend [the law] as a consumer protection bill, the current record leaves little doubt that Montana’s legislature and Attorney General were more interested in targeting China’s ostensible role in TikTok than with protecting Montana consumers,” Molloy wrote in his ruling.

State bans of TikTok on government devices and networks have been more successful. A federal judge recently dismissed a legal challenge against Texas’ ban of TikTok on government devices.

While these laws have stood, wider bans appear to be losing ground with the American public. A recent survey from the Pew Research Center found that the share of U.S. adults that said they would support a government ban on the app slipped from 50% in March to 38% today, with more opposed to or uncertain of a ban. Just 18% of teenagers said they would support a ban, showing TikTok’s popularity among young people.

In addition to state laws regulating minors’ use of social media, many states have also joined a lawsuit against Facebook’s parent company Meta, accusing it of damaging young people’s mental health and illegally harvesting their data.

Some observers are not convinced of the lawsuit’s merits, arguing that blaming platforms for the current youth mental health crisis and other ills young people face is not likely to succeed as a legal argument.

“The real problem here is that this is kind of a tech scapegoating for the failures of the government itself across the board,” Carl Szabo, vice president and general counsel at NetChoice, said during a recent webinar.

Others on the same webinar hosted by the Information Technology and Innovation Foundation said that young people themselves have been among the loudest voices calling for changes in the way social media platforms operate. And those young people have been the hardest hit.

“It's the digital native generation that social media has harmed the most, who have watched so many of their friends starve and die and hurt, who miss their friends and who miss genuine social interaction,” said Ava Smithing, advocacy and community director at the nonprofit Young People’s Alliance. “They've grown up to the point where they now can speak their minds and they are speaking their minds about the change that they want to see. You can't ignore that.”

While it may be tempting for states to try and punish social media platforms for their impacts, some elected officials have tried to take a different tack and emphasize greater social media literacy among young people. 

Florida now mandates that social media literacy be taught in public schools, while California Gov. Gavin Newsom signed legislation in October to integrate social media literacy into the K-12 curriculum when it is next revised.

“We have a responsibility to teach the next generation to be more critical consumers of online content and more guarded against misinformation, propaganda and conspiracy theories,” California Assemblymember Marc Berman, who authored the legislation, said in a statement. “In addition, this instruction will help students to be more responsible digital citizens, more intentional about what they put online, and better understand online safety and privacy."