This year, several Oklahoma lawmakers are attempting what lawmakers in other states have tried: banning social media for minors and/or requiring some level of age verification. While these bills appear to solve a very real problem, they have consistently failed to pass constitutional muster when courts view them in light of the First Amendment’s protections.

We should start by acknowledging the truth about teens and social media. In addition to its benefits, there are very real harms that can be brought on by social media use—especially compulsive use. To begin with, social media has been used by child predators to prey on minors. There also appears to be a correlation between social media use and poor mental health outcomes—particularly among teenage girls. And the problems seem to compound the more time a child spends on these various platforms.

It is for these reasons, among others, that my wife and I have decided not to let our kids have smartphones or create accounts with the major social media platforms—though Duolingo (which we do allow them to use) could also be banned/subject to age restriction under these bills. This is an important distinction. The institution charged with dictating what kids may or may not do is primarily the family—not the state. This is especially true when the activity in question is speech-related.

Social media platforms provide a wide array of expressive activity that is protected by the First Amendment. Users consume political and religious content, share pictures, read the news, follow sports teams, and share recipes and home decor, to name a few. Even media that may be harmful—such as online “bullying”—is protected speech. For this reason, similar laws in California, Ohio, Mississippi, Utah, and Arkansas have been struck down for violating the First Amendment rights of minors and adults alike.

Consider bills requiring age verification. These bills require adults to input their own identifying information both to verify their own accounts and to provide permission for minors in their care. This effectively eliminates anonymous speech—which has become even more important in the era of “cancel culture.” It also raises serious questions about harms occurring from a data breach. These two realities have a chilling effect on protected online speech. 

Furthermore, age verification does nothing to protect children from the harms mentioned above. Age verification does not prohibit a minor from spending hours a day on social media once parental consent has been achieved. Nor does it protect them from potentially harmful content on these platforms. In other words, there’s no reason to believe the same parents who allow their children to watch TV and play video games for hours a day will draw the line at social media. 

Meanwhile, outright bans for minors, while ostensibly keeping minors from harmful conduct and compulsive social media use, face an even larger uphill battle on First Amendment grounds. Even minors have First Amendment rights. As Justice Antonin Scalia explained over a decade ago,

[M]inors 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.” No doubt a State possesses legitimate power to protect children from harm, but that does not include a free-floating power to restrict the ideas to which children may be exposed.

But parents are not without recourse. As mentioned above, parents have been given to children to direct their behavior, and that includes social media and smartphones. Parental controls exist at every level, including the router, device (such as smartphone or computer), and on the platforms themselves. But most importantly, there is the parental control that parents themselves possess. Much to the chagrin of kids, they have no First Amendment rights as to their parents. Parents can, and often should, say “no” to smartphones and social media—at least until they deem their child is mature enough to handle them. 

Can the government do anything to address this issue? Of course. The government has the ability to help educate parents on various parental controls they can use to keep their kids safe. Furthermore, the legislature could look at recent ALEC model legislation which directs schools to educate kids on the benefits and dangers of social media. But the government should not seek to insert itself into the role of parent—especially when doing so flouts the constitutional rights of minors and adults alike.