Why It Matters
States have enacted dozens of laws to regulate social media, targeting everything from platform design to minors' access, but most face steep First Amendment hurdles.
A Congressional Research Service (CRS) report released August 24 maps out a constitutional minefield for lawmakers trying to resolve these issues.
The Big Picture
The report identifies four categories of state regulation: laws restricting minors' access, laws targeting specific content, laws governing platform design, and disclosure requirements. Each faces different constitutional standards, and courts have reached varied conclusions.
Content-based laws restricting speech are subject to strict scrutiny and are presumptively unconstitutional. Courts have been more likely to rule in this way when a law exempts sites based on content type, such as news, sports, entertainment, or e-commerce sites. Multiple trial courts have struck down state laws that define covered platforms by exempting sites based on content type.
The Eleventh Circuit held that Florida's platform definition was content-neutral because it targeted a form of expression rather than a subject matter. It stayed a preliminary injunction against Florida's HB3, concluding the law was likely constitutional under intermediate scrutiny, because it restricted access to platforms with addictive features rather than banning minors from social media altogether. Circuit courts are split on whether platforms that children are likely to access based on content should be regarded as either content-based or content-neutral.
Most federal trial courts reviewing state laws that require parental consent or age verification for minors to access social media have found that those laws are likely to be unconstitutional. Laws requiring platforms to filter or block specific categories of content are treated as content-based and will almost certainly trigger strict scrutiny. Courts have generally found such laws fail strict scrutiny because less restrictive alternatives exist, such as voluntary filtering or parental education campaigns.
On design restrictions, courts have found infinite scroll to be non-expressive, meaning banning it does not change what speech users can access. But courts have found that "like counts," namely the total number of approvals a post receives, to be expressive. That means restricting them constitutes regulation of speech with particular content. Such restrictions are subject to strict scrutiny and likely unconstitutional.
Courts have found private mode defaults to be content-neutral, subject to intermediate scrutiny, and likely constitutional. Courts have found push notification timing restrictions to be expressive, changing when and how much speech is published, and therefore raising First Amendment concerns.
Courts have generally upheld requirements that platforms disclose their existing content moderation policies under the lenient Zauderer review. This legal standard allows the government to mandate commercial speech, such as product labels or warning disclosures, without triggering strict or intermediate scrutiny provided that specific requirements are met. However, two courts found state-mandated mental health warning labels likely unconstitutional, one under intermediate scrutiny in Texas and one under strict scrutiny in Colorado.
The Bottom Line
The law on social media regulation remains unsettled. Whether design regulations constitute regulation of speech or conduct, and thus which level of First Amendment scrutiny applies, is an active and unresolved legal question.
The report recommends that Congress develop a legislative record, through committee hearings or a findings section, showing why its approach is appropriately tailored to regulatory goals.
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