Zoë MacDonald
Volume 76, Issue 2, 589-628
Children’s use of social media has been linked to an overwhelming number of adverse effects on their mental health, privacy, and well-being. There is a general consensus among parents, researchers, and lawmakers that children’s online protections must be expanded. However, recent legislative efforts to effect change have been met with consistent failure. Recently, California, Arkansas, and Texas passed new legislation intended to bolster existing protections and expand child privacy online. The Arkansas law and portions of the California and Texas laws do not pass constitutional muster under current case law, and all three federal district courts articulated their inability to permit these proposed protections within First Amendment precedential confines.
The present framework is outdated, unsuitable, and overly narrow for application to today’s online context. Assumptions about the internet at the time this case law was developed are counterfactual in 2025. A reconsideration of existing Supreme Court First Amendment precedent to sanction greater regulation of child safety online is critical to setting up an expansive framework in which child protections can be prioritized. Pending the Supreme Court’s revision of First Amendment precedent, lawmakers are not without options. Legislators can initiate solutions that are permissible under the existing framework, including cell phone bans in schools, restrictions on access to obscene materials, increased regulations on data collection and sales or the use of dark patterns, and funding programs that educate parents and children about safe online practices. Though assembling a patchwork of narrow regulations this way may be effective, the Supreme Court needs to update its First Amendment framework to make space for policymakers to broadly expand privacy laws and create a robust defense against technology-related harms to minors.