August 25, 2023
Will Flanders and Edward Longe
Social media has revolutionized the world in ways that few could have envisioned two decades ago. In 2022, Pew Research found that 95% of teenagers used social media platforms for benign sorts of outreach and self-expression — sharing their photos, perspectives and communicating with friends and family.
Despite the prominence of this engagement in the lives of American teens, lawmakers across the country are weighing legislation that would require social media platforms to impose age restrictions for access to online forums. They are concerned that platforms such as Facebook, Instagram and Snapchat are responsible for declines in teen mental health.
As the Centers for Disease Control recently reported, feelings of depression, anxiety and suicidal thoughts among teens have increased with time spent online. Seeing this correlation, policymakers are thinking of ways to solve this perceived problem. While no conclusive link has been made between the two phenomena, policymakers around the country have proposed solutions that — while well-intended — have the unintended consequences of undermining user privacy and First Amendment rights.
For example, a recently proposed bill in Wisconsin would require that social media companies designate all accounts as “youth accounts” unless proven otherwise. The bill would require those accounts be banned from accessing social media between 10 p.m. and 7 a.m. Presumably, this would be accomplished by requiring everyone to submit an ID or through the use of facial recognition technology.
The creation of an online record tied to the identification of every comment or post a user has made online could have a chilling effect on freedom of speech. The U.S. Supreme Court has recognized a right to anonymous speech in the First Amendment. As early as 1960, the high court affirmed the ability of groups to be able to anonymously criticize oppressive practices and laws and to hand out anonymous pamphlets, leaflets and books.
The Federalist Papers, written in favor of the adoption of our Constitution, were published under fictitious names. Regardless of how one feels about social media, anonymity has sometimes been used for the most constructive purposes. And regardless of whether anonymous speech is perceived to have value or not, the government is prohibited from making any law abridging the freedom of speech.
Moreover, social media companies have demonstrated a vulnerability to online hacking. This could lead to the exposure of sensitive personal information to cybercriminals who can then steal users’ identities.
Unfortunately, Wisconsin is not alone in proposing unconstitutional legislation that also risks creating unnecessary cybersecurity vulnerabilities and free speech concerns. Arkansas and Utah have recently enacted similar laws that would require social media platforms to verify the age of their users and require those under the age of 18 to get parents’ permission before opening an account.
Fortunately, alternatives exist that can strengthen online protections and restrict access to content that’s inappropriate for young audiences. Indeed, these alternatives can also bolster cybersecurity, rights to privacy and avoid running afoul of constitutional liberties.
One intriguing solution has emerged in Florida. The law requires that public school students be taught age-appropriate information about common dangers on social media. Starting in sixth grade, students would learn about the social, emotional and physical consequences one can experience through engagement on social media. Students will also be instructed about the permanence of information that is posted online, and encouraged to think about whether they may regret sharing something later.
The law also requires that social media-related instructional materials be made available to parents — a provision that will ensure social media education can continue when students leave the classroom.
This Florida model is a reasonable approach. Without this education, arbitrary filtering systems will do little to prevent motivated young people from accessing what they want. Schools are already mandated to provide instruction on a number of different topics vital to helping students develop into successful adults.
For example, a Wisconsin law passed in 2017 required that schools provide instruction on a number of areas of financial literacy, from building up savings to understanding how credit works. We think that developing a healthy relationship with social media is equally important in the modern world.
This alternative legislation is not a silver bullet and risks will remain. But it will go a long way to ensure teenagers understand how to stay safe online.
As with every aspect of raising a child, the diligence of parents and families is critical to ensuring that the worst outcomes of social media are avoided. Modeling Florida’s approach of educating students would support parents’ rights to guide and prepare their children for the modern media environment.
Rather than pursuing the heavy hand of state government, we urge policymakers to instead consider legislation that informs kids and empowers parents to safely navigate the social media world.
Flanders is the research director at the Wisconsin Institute for Law and Liberty, based in Milwaukee: will-law.org. Longe directs the Center for Technology and Innovation at the James Madison Institute in Tallahassee, Florida: jamesmadison.org.