Is Florida’s Upcoming Social Media Ban Unconstitutional?

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Starting January 1, 2025, kids under 14 living in Florida will no longer be allowed to use social media, according to House Bill 3 (HB 3), one of the most restrictive bans for minors on social media. Entering the New Year, platforms like Instagram and TikTok will be required to delete accounts owned by people under 14. In addition, 14- and 15-year-olds will be allowed to access social media but only with parental approval. Despite the widely known negative effects these platforms have on the mental health of America’s youth, not everybody is happy about the new law. Some people think it violates the First Amendment rights of children. Others believe it’s not the government’s responsibility to police what people of any age watch and read. Are the critics right? Is Gov. Ron DeSantis (R-FL) overreaching?

The Ins and Outs of Florida’s Social Media Ban

While most Americans seem to agree that social media has negative consequences for the mental health of minors, many believe the ban is too extreme, especially without first trying other options. Still, “lawmakers have rushed headlong toward restricting protected expression as a first response rather than as a last resort,” suggests FIRE (the Foundation for Individual Rights and Expression) in an article published on its website.

Posts on social media – images, videos, audio, and text – are considered expressive acts, and numerous people think these forms of expressions are – or should be – protected by the Constitution. Unless a post fits into one of the First Amendment’s exceptions, “[t]he government can’t restrict it without surviving the applicable level of constitutional scrutiny,” as FIRE put it. Not to mention, “it would teach them [children] the First Amendment doesn’t really mean what it says and that the government knows best. That’s a dangerous lesson for the next generation of Americans to learn.”

Youths are legally considered to have mostly the same rights as adults, to an extent. Minors “are entitled to a significant measure of First Amendment protection, and only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to them,” according to the Supreme Court’s ruling nearly fifty years ago in Erznoznik v. City of Jacksonville, a case regarding restrictions at drive-in movie theaters. Jumping ahead to 2011, in Brown v. Entertainment Merchants Association, the Court overturned a law prohibiting kids under 18 from buying or renting “violent video games.” Justice Antonin Scalia, writing for the majority, said even though the government “possesses legitimate power to protect children from harm,” it does not give it “a free-floating power to restrict the ideas to which children may be exposed.”

Yet several states, including Ohio, Arkansas, Utah, and California, have attempted to limit minors’ access to social media. Most of these attempts, however, have been postponed by lawsuits challenging their constitutionality. […]

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