Tom Voet, Associate Member 2025-2026
Intellectual Property and Computer Law Journal
I. Introduction
Generations ago, a public forum for speech meant a public road, school, or park; however, ways to communicate speech has evolved as technology advanced. The interconnectedness and instant access of digital communication makes social media platforms just as—if not more—effective as a forum for political and social discussion than any traditional public square. Recently, lawmakers sought to enact laws which forbid or limit minors from accessing social media, a strategy that free speech interest groups are outwardly against. As this discourse develops, courts must consider how to weigh potential First Amendment violations against the need to protect children.
This Blog discusses these issues and explores how prior court decisions regarding speech rights of children could provide a starting point for the judiciary. Section II provides background over these social media restrictions and highlights several key court decisions concerning First Amendment rights of minors. Section III argues that these standards demonstrate a compelling need to protect the American youth, and that these needs are sufficiently compelling enough to defeat even the highest level of scrutiny because mounting evidence demonstrates that social media use is dangerous to children.
II. Background
Age Limits and Verification Laws for Minors on Social Media
Currently, social media is a defining aspect of our world. It allows for easy communication and is defined broadly as “forms of electronic communication through which users create online communities to share information.”[1] In 2009, only 46% of American adults utilized any form of social media.[2] Whereas in 2025, this number elevated significantly, with over 70% of Americans maintaining some kind of online social media presence.[3] Among the youth, these figures are near-ubiquitous. In 2022, 95% of young people in America (between the ages of 13-17) reported some kind of social media use in their lives,[4] with nearly two-thirds of teenagers reporting daily use.[5] These numbers concerned many leaders in the United States. For example, in 2025, the Office of the Surgeon General relayed the existence of negative correlations between teen social media use and self-image. [6] As a result, the Surgeon General “could not advise” social media to be “sufficiently safe” for teens and young adults.[7]
To address these concerns, state lawmakers began to take steps to curb the potentially dangerous impacts of continued social media usage among the youth. Legislators have begun to enact—or attempted to enact—laws imposing certain limitations on social media platforms. These limitations include age limits, parental consent requirements, and age verification requirements. One of the most prominent pieces of legislation is Virginia’s “Protecting Kids on Social Media Act,” which was enacted on January 1, 2026.[8] This law notably includes a one-hour limit on social media use for users under the age of 16, which can be adjusted with parental consent. Similarly, Tennessee’s “Protecting Kids from Social Media Act,” enacted in 2025, requires social media sites to verify the age of all users, and obtain parental consent to access social media platforms for any user under the age of eighteen.[9] Both of these laws broadly emphasize parental oversight and general caution in dealing with social media and demonstrate the steps state legislators are taking to combat excessive social media engagement in the youth.
Though several social media restriction laws enjoyed quick passage through state legislatures, other jurisdictions suffered setbacks from the judiciary and backlash from key interest groups. In 2023, Ohio passed its own “Social Media Parental Notification Act,” which essentially mirrored Tennessee’s required parental consent for users under the age of sixteen. However, the bill quickly met critics, such as public interest group Netchoice, who argued that the bill unduly burdened free speech of minors and violated privacy rights. In 2024, the Southern District Court of Ohio granted a preliminary injunction, preventing the bill from becoming law. The court posited that parental notification requirements violated users’ rights to free speech, regardless of the potential government interest in protecting youth. These criticisms are not limited to Ohio—lawmakers in other states and the federal government attempted to enact similar laws for several years. To ensure passage of these laws, lawmakers must address these concerns.
Preceding Standards of Free Speech for Minors
The Framers sought to elevate one right above all others in the Constitution¾free speech under the First Amendment.[10] While the United States bears little resemblance to the country at its founding, the judicial system protects First Amendment principles, even as the country changes technologically, socially, and politically. However, that broad protection comes with nuance. If there is a compelling governmental interest in restricting speech, then courts will refuse to extend the First Amendment protection to that speech. For example, courts historically permitted restrictions on obscene and defamatory speech.[11] Similarly, the Supreme Court noted that states have a compelling interest in upholding the abilities of parents to raise their children and to protect children from harmful material. [12]
Though the First Amendment applies broadly to all American citizens, this application does not apply equally to minor persons. In Ginsberg v. State of N.Y., the Supreme Court examined a New York law that prohibited sale of pornographic magazines to minors.[13] Here, the Court upheld the law, asserting that the state legislature rationally decided that the magazines could, among other things, pose a threat to parent’s authority and ability to rear their own children.[14] The court justified this restriction on minor speech by arguing children do not enjoy First Amendment protections identically to adult citizens. The Court reasoned that “the power of the state to control the conduct of children reaches beyond the scope of its authority over adults.”[15] In doing so, the Court emphasized both the state’s independent interest in safeguarding minors and the complementary interest in supporting parental authority. Ginsberg thus established that the First Amendment does not operate identically for children and adults.
The Court later reaffirmed this position in Sable Commc’ns of California, Inc. v. F.C.C., where it held that California had a “compelling interest in protecting the physical and psychological well-being of minors.”[16] Although the Court struck down a total ban on “indecent” commercial telephone messages because it unnecessarily restricted adult access, it unequivocally recognized that protecting the “physical and psychological well-being of minors” constitutes a compelling governmental interest.[17] Sable is significant because it clarified that even under strict scrutiny, shielding minors from harm is among the most powerful interests a state can assert.
Even today, the protection of children’s’ wellbeing remains a crucial factor in First Amendment analysis. This is exemplified by the recent case Free Speech Coalition v. Paxton, which concerned a Texas law requiring age verification on pornographic internet sites.[18] The Court upheld the law by primarily relying on precedent that emphasized a state interest in restricting children from accessing obscene material.[19] The Free Speech Coalition (“Coalition”) argued that age verification placed an undue burden on adults from accessing protected speech anonymously. To the Coalition, requiring legal adults to submit personal details about themselves to access permissible material stood as an unconstitutional restriction of speech.[20] However, the Court dismissed this argument by characterizing the burden as “incidental” in the pursuit of protecting minors.[21] Paxton stands for the proposition that if the governmental interest is sufficiently compelling, then age verification requirements can be constitutional despite the incidental burden on adult speech.
Despite the differences in First Amendment rights between adults and minors, the Court maintains that minors do possess free speech rights. In Brown v. Entertainment Merchants Association, the Supreme Court examined a California law which enacted a blanket ban on the sale of “violent video games” to minors.[22] The Supreme Court engaged in a strict scrutiny analysis of the law, considering whether or not there was a compelling government interest in protecting children from certain video games, and whether the law was narrowly tailored to achieve that purpose.[23] The Court concluded that the law lacked sufficient evidence to prove there was a compelling, defensible interest, and that the law was both under and over-inclusive to achieve the government’s interest.[24] To make this determination, the Court stated that the evidence relied upon by the state involved merely correlative connections between violence in minors and consumption of violent media, without establishing any kind of a causal relationship.[25] The Brown case emphasizes the position that minors, despite having a few unique protectable interests involving the First Amendment, are generally protected from censorship from free speech, and that the state must survive strict scrutiny if it wishes to potentially infringe on these rights.
III. Discussion
As age verification laws rise in frequency, courts will soon grapple with First Amendment challenges to the constitutionality of such laws. Although courts previously allowed broad free speech restrictions among minors, these have almost entirely been in the realm of obscenity. As exemplified in the Brown case, a broader law curtailing minor speech outside of the arena of obscenity must pass the highest form of scrutiny. This poses several questions for the courts: are age verification laws supported by a “compelling” government interest, and are these laws sufficiently narrowly tailored?
The Compelling Interest of Protecting Children
Though most of the previously mentioned cases dealt with minors being exposed to obscene material, this principle can be interpreted as a need to protect children’s’ well-being. Sable Communications explicitly recognized a compelling government interest in protecting the “physical and psychological well-being of minors.” Regardless of the presence of obscene material, there is a legitimate and protectable state interest implicated by anything that places minors under potential harm.
Social media presents a different category of harm than the sexually explicit materials at issue in Ginsberg and Sable, but the asserted state interest is similar. Lawmakers increasingly cite research linking prolonged social media use to anxiety, depression, body-image distortion, sleep disruption, and exposure to self-harm content among adolescents.[26] These statistics already demonstrate more danger than the mostly speculative findings of video game-caused violence in children that were rejected in Brown, given the clearer causal links observers can perceive. Unlike the evidence relied upon in Brown, which asserted plainly violent video games could make some children more aggressive, legislatures now point to mounting empirical data, advisory opinions from figures of authority, and alarming testimony of whistleblowers.
Further, the nature of social media should be considered when conducting a First Amendment analysis because video games and social media are vastly different in nature. Social media platforms are not individual products of unique, artistic expression like video games can be. Rather, they are algorithmically designed platforms modeled to maximize user engagement.[27] Legislatures argue that these platforms amplify harmful content and create compulsive usage patterns, particularly among minors who have not yet reached an age of maturity, and whose cognition systems are still developing.[28] If courts decide to weigh this aspect of social media use, courts should note the government does not intend to suppress int a viewpoint or a category of ideas, but rather to mitigate structural harms inherent in the medium itself.
Taken together, precedent suggests that protecting children’s psychological well-being constitutes a compelling governmental interest. The remaining question is whether courts will view the harms associated with social media as sufficiently concrete and causally supported to satisfy strict scrutiny, rather than as the type of attenuated correlations dismissed in Brown.
Are Age Verification Laws Narrowly Tailored?
Even assuming the presence of a compelling interest, age verification laws must still be narrowly tailored to survive strict scrutiny. Similar to Brown and Paxton, critics may argue that many of these laws are overinclusive because they restrict access to vast quantities of constitutionally protected speech that is not inherently harmful. Social media platforms contain political discourse, educational content, artistic expression, and community support networks. As noted in Brown, blanket prohibition or time restrictions may burden minors’ access to protected speech far beyond the state’s stated objective.
However, proponents of age verification statutes may draw support from Free Speech Coalition v. Paxton, where the Court upheld age-verification requirements for adult websites despite incidental burdens on adult access. The Court characterized those burdens as constitutionally permissible, and a necessary step toward the strong interest of protecting children from obscene material. Legislatures and supporters of age verification laws may argue that social media age verification is analogous to those same restrictions in Paxton, which did not prohibit speech outright but instead placed restrictions of access based on age, much like longstanding age-based restrictions on alcohol, tobacco, and adult entertainment.
Additionally, these laws may come in several shapes and sizes, which may have varying constitutionality. Some state laws incorporate parental consent mechanisms as opposed to strict bans. By placing the majority of control in the hands of the parents, legislatures can argue that these statutes are less about controlling free speech of minors and more about maintaining family autonomy in the face of an unpredictable and often chaotic digital environment. If blanket bans fail, states could move to a model of parental control, similar to the Tennessee statute, to curate a more narrowly tailored solution.
Ultimately, the constitutionality of these laws may hinge on how courts conceptualize the burden imposed. If age verification is seen as a modest procedural hurdle designed to protect minors—similar to the framework upheld in Paxton—courts may be more receptive. If, however, it is viewed as a sweeping suppression of minors’ access to protected speech, strict scrutiny will likely prove fatal.
IV. Conclusion
Though social media is an excellent tool for public speech and expression, parents are justifiably concerned with minors’ unadulterated access to social media. It’s true that children typically enjoy the same Constitutional protections as adults, but there is Supreme Court precedent that asserts minors need not be treated identically to adults in all circumstances. Youth are the most impressionable within a society, and as such often require the highest protection from potentially harmful influence. Though the data is far from conclusive, social media is increasingly presented as a threat. As age verification laws continue as contentious points of debate within the legislature, and throughout the United States, courts will need to reckon the enduring promise of free speech with a global digital environment unlike anything seen before. The courts’ handling of these issues in the coming years will stand as a litmus toward the judiciary’s overall attitude of our how our First Amendment guarantees can apply in the context of a rapidly changing world.
[1] Social Media, Merriam-Webster Dictionary, (11th ed. 2026).
[2] Amanda Lenhart, Adults on Social Media Network Sites, 2005-2009, Pew Research Center, https://perma.cc/7RG2-6UUS
[3] Jeffrey Gotfried and Eugenie Park, Americans Social Media Use 2025, Pew Research Center, https://perma.cc/5Y7A-PT5N
[4] Emily Vogels, et al., Teens, Social Media and Technology 2022, Pew Research Center, https://perma.cc/37BB-65GG
[5] Victoria Rideout, et al., The Common Sense Census: Media Use by Tweens and Teens, Common Sense Media, https://perma.cc/YX6J-KJ7V
[6] Office of the Surgeon General, Social Media and Youth Mental Health, https://perma.cc/JGS4-UYDZ
[7] Id.
[8] Consumer Data Protection Act, Va. Code Ann. § 59.1-577.1 (2026).
[9] Protecting Kids from Social Media Act, Tenn. Code Ann. § 47-18-5703 (2024).
[10] U.S. Const. amend. I.
[11] Chaplinsky v. New Hampshire, 315 U.S. 568, at *572 (1942).
[12] Ginsberg v. State of N.Y., 390 U.S. 629 (1968).
[13] Id.
[14] Id. at 638.
[15] Id.
[16] Sable Commc’ns of California, Inc. v. F.C.C., 492 U.S. 115, 126 (1989).
[17] Id.
[18] Free Speech Coalition v. Paxton, 606 U.S. 461 (2025).
[19] Id. at 474
[20] Id. at 478
[21] Id.
[22] Brown v. Entertainment Merchants Association, 564 U.S. 786
[23] Id at * 791
[24] Id. at *802
[25] Id. at *799
[26] Supra, note 6
[27] See, Bobby Allyn, Here are 4 key points from the Facebook whistleblower’s testimony on Capital Hill, (2021), NPR,[https://perma.cc/MXG7-TDD3]
[28] Supra, note 6
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