Last month, the United States District Court for the Western District of Texas enjoined parts of the state's Securing Children Online Through Parental Empowerment (SCOPE) Act, a law requiring certain digital service providers (DSPs) to limit Texas minors' access to harmful online content and targeted advertising.
Texas is just one state whose laws restricting minors' access to content and advertising on social media and other online platforms have been subject to First Amendment challenges in recent months. A theme is emerging as courts continue to hold that the First Amendment remains a barrier to overly broad regulations on online speech and access to information online, even by minors, and reaffirm that free speech is not a right that accrues only to adults.
Others, such as California's Age-Appropriate Design Code (AADC), have received similar First Amendment scrutiny in the past year, while lawsuits initiated by state attorneys general against social media platforms alleging violations of state consumer protection statutes, the Children's Online Privacy Protection Act (COPPA), and other laws continue to make their way through the courts. The recent flurry of litigation in this space suggests that while lawmakers and enforcers are focused on regulating minors' social media use, the First Amendment continues to be an important check on laws that limit access to content and advertising online.
Parts of Texas SCOPE Act Held Unconstitutional
In part, the SCOPE Act requires covered DSPs to implement strategies to prevent exposure of known minors, defined as those under the age of 18, to harmful material and other content that "promotes," "glorifies," or "facilitates" certain harms, such as suicide, self-harm, and eating disorders, and additionally requires covered DSPs to filter and block such content from being displayed to known minors (the "monitoring-and-filtering requirements").
The law also requires certain DSPs that knowingly publish or distribute a particular amount of harmful or "obscene" material to use commercially reasonable age verification (the "content monitoring and age verification requirements"). In addition, the law bans use of a digital service to display targeted advertising to a known minor (the "targeted advertising requirements").
In February, the Texas district court enjoined those requirements of the SCOPE Act on First Amendment grounds. In a prior August 2024 decision, the court reasoned that its review required strict scrutiny because the law applies only to certain DSPs that host or broadcast "social" speech, while other DSPs that offer access to news, sports, commerce, and primarily DSP-generated content are exempt from coverage. To survive strict scrutiny, the regulation must be the least restrictive means of achieving a compelling state interest.
In its February decision, the court said the monitoring-and-filtering requirements failed strict scrutiny, finding no clear compelling interest in preventing minors' access to every category of purportedly harmful content regulated by the law and noting that the state's aim could have been achieved through less restrictive regulatory regimes. The court also found the content monitoring and age-verification requirements unconstitutional on First Amendment grounds, holding that the provisions were not necessary to prevent the alleged harms and questioning whether a less restrictive alternative could have satisfied the state's interest.
Finally, the court found that the targeted advertising requirements failed strict scrutiny. It noted that there was no compelling or specific interest articulated for blocking teens' access to all targeted advertising. The court said the targeted advertising requirements lacked the required narrow tailoring, as they did not distinguish between potentially harmful advertising and non-harmful or even beneficial advertising to minors, such as advertising related to public health, scholarship opportunities, and learning opportunities.
Courts Continue to Weigh in On Minors' Access to Social Media Content and Advertising
While the district court enjoined the Texas SCOPE Act's monitoring-and-filtering requirements, content and age-verification requirements, and targeted advertising requirements on constitutional grounds, other provisions of the law remain in effect. Those include:
- Provisions prohibiting digital service providers from entering into agreements with individuals unless such individuals register their ages with the digital service provider
- Requirements for digital service providers to limit collection and use of known minors' personal identifying information to that information that is reasonably necessary to provide the service
- Prohibitions on the digital service provider's ability to allow known minors to make purchases through the service; sell, share, or disclose known minors' personal identifying information; and collect known minors' precise geolocation data using the digital service, in addition to other provisions
Texas Attorney General Ken Paxton has already appealed the district court's decision, setting the stage for the Fifth Circuit Court of Appeals to examine yet another law regulating interactions with social media. Just last year, the Supreme Court vacated and remanded a Fifth Circuit Court of Appeals decision that had declined to extend First Amendment protections to social media platforms facing laws regulating their content moderation policies.
Courts have confronted other laws that similarly set out to extend heightened protections to minors online but may unconstitutionally burden speech or otherwise violate the First Amendment. This includes "kids' code" laws passed in a number of states that require online properties likely to be accessed by minors under 18 to take various steps, including preparing data protection impact assessments (DPIAs) that consider and mitigate certain types of risks to minors.
California's Age-Appropriate Design Code has been subject to litigation since its passage, with plaintiffs arguing that the law unconstitutionally burdens online services based on the content they publish. In August 2024, the Ninth Circuit partially vacated a district court's preliminary injunction, allowing some portions of the law to take effect. The DPIA mandate, however, remains enjoined while the lower court considers its constitutionality. A similar law in Maryland, enacted in 2024, is now also facing legal challenge on First Amendment and other grounds under a lawsuit filed earlier this month.
In addition, state attorneys general have levied lawsuits against social media companies, alleging their "addictive" features and other elements harm young users' mental health, run afoul of consumer protection laws, and violate COPPA. States continue to pass new laws regulating minors' access to social media. For example, bills currently pending in Alabama and South Carolina would impose targeted advertising restrictions on social media platforms that are substantially similar to provisions the Texas district court enjoined under the SCOPE Act. As a result, just as lawsuits continue to define the contours of acceptable regulation of online content and social media access in particular jurisdictions, new laws that test the bounds of those decisions continue to pass around the country.
The First Amendment Remains a Hurdle
Across the litigation trends described above, the courts have repeatedly affirmed that First Amendment protections protect both the freedom to create speech and the right to receive information and ideas, and they have held that these protections extend to minors and to the social media context (including advertising). The Texas district court's recent ruling on the SCOPE Act is just the latest demonstration that a state's interest in protecting minors online does not outweigh all First Amendment considerations.
If you have questions about how the courts are wrestling with the issue of minors' access to social media, or child and teen online privacy compliance, or you would like to discuss any other privacy issues, please contact the authors, or any member of Venable's Technology and Innovation team.