TALLAHASSEE, Fla. – A 2024 Florida law aimed at keeping children off of social-media platforms came under scrutiny Friday, as lawyers for the state told a federal judge the measure is addressing a “mental-health crisis” and attorneys for industry groups argued the restrictions violate First Amendment rights.
The law, in part, seeks to prevent children under age 16 from opening social-media accounts on certain platforms — though it would allow parents to give consent for 14- and 15-year-olds to have accounts. Children under 14 would be prohibited from having accounts.
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The Computer & Communications Industry Association and NetChoice, whose members include tech giants such as Google and Meta Platforms, filed a lawsuit in October, contending the law — spearheaded by then-House Speaker Paul Renner, R-Palm Coast — violates speech rights and that parents should make decisions about children’s social-media use.
Lawyers for the state argue that, among other things, the industry groups do not have legal standing to challenge the law and that its restrictions regulate commercial activity — not speech.
Kevin Golembieski, who works for Attorney General James Uthmeier’s office, told Chief U.S. District Judge Mark Walker on Friday that the law addresses social-media platforms that are “addicting kids to their products,” resulting in a “mental-health crisis … that has harmed a generation of children.”
“We’re not singling out any kind of content,” Golembieski said. “If newspaper companies were lacing their papers with LSD and selling them, we could regulate them.”
The law does not infringe on speech rights because kids also can use their parents’ accounts on social-media platforms or have their own accounts on platforms “without addictive features,” the state’s lawyer argued.
The law was supposed to go into effect Jan. 1, but the state’s lawyers in November agreed not to enforce it until Walker rules on the plaintiffs’ request for a preliminary injunction.
Erin Murphy, an attorney who represents the tech groups, told Walker the law is not “narrowly tailored” enough to “avoid abridging” First Amendment rights.
The groups in court documents also have argued that the platforms have provided a number of ways for parents to control and monitor what children can access on social media.
But Golembieski told Walker that the parental controls are ineffective and that the number of parents who use such tools is “in the single digits.” He also pointed to children being able to use parents’ accounts.
Walker pressed the state’s lawyer on the issue, saying the state has “empowered parents” to have control over their children’s education.
“I don’t want to monitor them. Just like I want them to go read the book about two male penguins raising an egg together. I don’t want them signed up on my account. I want to have my own Facebook account. You’ve taken that choice away from me, right?” the judge asked. “The state of Florida picks and chooses when they want the parents to be making the decision. When it suits their purposes, they do. When it doesn’t, they don’t.”
Golembieski called such an argument “stunning,” arguing that the “less restrictive” approach would be to “just trust” the social-media platforms.
“That’s a similar argument to what the tobacco companies made 50 years ago,” he said.
Walker also asked Murphy what prevented the state from addressing what government leaders maintain is a critical health issue for children.
“Is the state’s hand really tied, if we’re faced with some sort of pandemic” and parents “were not really policing their kids to begin with?” he asked.
Murphy said the state failed to show that the parental controls don’t work.
“They can’t just come in and say we don’t think they’re effective because not enough parents are using them,” she said.
The law does not name social-media platforms that would be affected. But it includes a definition of such platforms, with criteria related to such things as algorithms, “addictive features” and allowing users to view the content or activities of other users. The law targets companies where 10 percent of daily users younger than 16 spend an average of two hours per day or longer on the forum.
Social-media companies that violate the law could face penalties up to $50,000 per violation. The law also would open them to lawsuits filed on behalf of minors.
In the lawsuit, attorneys for the tech groups argued that the law “is the latest attempt in a long line of government efforts to restrict new forms of constitutionally protected expression based on concerns about their potential effects on minors.” Whether a platform is covered by the law “turns in part on how long minors spend on it” and whether it employs tools designed to bring their attention to content they might like, the lawsuit said.
“But by that metric, the state could restrict access to the most popular segments of nearly any medium for constitutionally protected speech, be it enticing video games, page-turning novels, or binge-worthy TV shows. Burdening protected speech that citizens find especially interesting is especially inconsistent with the First Amendment,” lawyers for the plaintiffs wrote.
Walker did not immediately rule after Friday’s three-hour hearing.
Stephanie Joyce, senior vice president and chief of staff of the Computer & Communications Industry Association, called the law “an extremely draconian and overly strict restriction” that is unconstitutional.
“We are talking about the ability of a website to talk to millions of folks about things that those folks care about, about the content that those folks like, and this statute specifically and purposely targets content that young folks like,” Joyce told reporters after Friday’s hearing.
Joyce also disputed the state’s arguments that the law (HB 3) does not regulate content.
“The simple fact is that what HB 3 attacks is the way a website displays content to interested users, the way they display content, the way the users can find the content and interact with the content. That is absolutely content-based. This is not just about technology. It’s not just about what kind of code you’re using. No. It’s about the way that these websites talk to their users and the way that these users can talk to the website. That is speech,” she said.
Meanwhile, a separate pending lawsuit challenges the constitutionality of another part of the law that requires age verification to try to prevent minors from having access to online pornographic sites. That lawsuit was filed by different plaintiffs.
— News Service of Florida Assignment Manager Tom Urban contributed to this report.