TESTIMONY: Banning Social Media for Minors — The First Amendment Wall

TESTIMONY: Banning Social Media for Minors — The First Amendment Wall

Introduction: Protecting Children Against Free Speech

More than forty states, one overriding precedent

Since 2023, an unprecedented legislative wave has swept across the United States: more than 40 states have adopted or attempted to adopt laws restricting minors' access to social media. TikTok, Instagram, Snapchat, YouTube — these platforms are in the crosshairs of legislators who see addictive algorithms as a real danger to adolescent mental health. Studies accumulate, testimonies from broken families fill courtrooms, and yet federal courts block law after law. One reason: the First Amendment.

This legal arm-wrestling match is not a constitutional abstraction. It touches millions of American families trying to protect their children in a digital environment that even Silicon Valley engineers hesitate to offer to their own sons and daughters. The paradox is brutal: those who build these platforms restrict their own children's access, while federal courts protect Meta's right to recruit users as young as 13.

Ohio's turning point, June 2026

On June 18, 2026, the 6th Federal Circuit Court of Appeals issued a historic ruling: by a two-to-one vote, the panel reinstated Ohio's law — the Social Media Parental Notification Act — which requires parental consent for any minor under 16 wishing to create an account on a social platform. It is the first major victory for a state before a federal appeals court since this legal war began. Judge Eric Clay, author of the majority opinion, held that the law did not violate the First Amendment because it regulates the platforms' behavior, not the content of speech.

But in Washington, Virginia, Florida, Georgia — the list is long — courts have ruled the other way. Federal Judge Patricia Giles blocked Virginia's SB 854 law in February 2026, which capped daily social media use at one hour for minors, calling it a direct violation of the First Amendment. This jurisdictional instability creates a patchwork map where a teenager's constitutional rights depend on their zip code.

The First Amendment and the Question of Minors

A 2017 precedent that overshadows everything

The ruling in Packingham v. North Carolina, handed down by the Supreme Court in 2017, is the stumbling block for all of these pieces of legislation. In that unanimous decision, Justice Anthony Kennedy wrote that social media have become "the premier place for all speakers seeking to test their ideas and to find those who share their convictions." The Court had struck down a North Carolina law barring registered sex offenders from accessing social platforms. The reasoning applies, by powerful analogy, to attempts to restrict access for minors.

But Packingham did not directly address minors. And American constitutional law has long recognized that the state has broader latitude to regulate children's access to certain content — the jurisprudence on pornography, rated films, and alcohol. The question tearing federal courts apart is therefore: do restrictions on minors' access to social media fall into this exception category, or are they disguised censorship of the speech of young citizens?

The strict scrutiny standard and its consequences

When a law touches on freedom of expression, American courts apply the most demanding standard: strict scrutiny. The state must demonstrate a compelling governmental interest and that the law is the least restrictive means of achieving that objective. This standard, in American legal practice, is described as "fatal in fact" — almost no law survives it. This is why NetChoice, the trade association representing TikTok, Meta, YouTube, and Snapchat, obtained injunctions against laws in Arkansas, California, Florida, Georgia, Louisiana, Mississippi, Texas, and Utah.

Florida's law, which totally banned social media access for children under 14 and required parental consent for 14 to 15-year-olds, was blocked by a federal court in June 2025. The judge concluded that even the legitimate interest in protecting children did not justify such a sweeping prohibition, which would deprive minors of a major forum for political, social, and cultural expression. Mississippi's law, meanwhile, was permitted to remain in force during proceedings by the Supreme Court in August 2025 — but with a notable concurrence from Justice Brett Kavanaugh, who wrote that the law was "in all likelihood unconstitutional."

Ohio Opens a Breach — The 6th Circuit Decision

A law based on conduct, not content

The 6th Circuit decision of June 18, 2026 is remarkable because it adopts a different line of reasoning from its predecessors. Judge Eric Clay emphasized that Ohio's Social Media Parental Notification Act does not target the content of speech — it does not say what young people may or may not read, share, or publish. It regulates the conduct of platforms: their obligation to obtain parental consent before allowing a minor to create an account. This "conduct vs. content" distinction is crucial in the architecture of the First Amendment.

The dissenting judge, however, argued that this distinction is artificial: the practical effect is indeed to prevent minors from accessing a forum for expression. Depriving someone of access to a platform amounts, in practice, to depriving their speech of its natural audience. The United States Supreme Court will have to settle this fundamental question — and Ohio's ruling increases the probability that SCOTUS will accept one of these cases during the 2026–2027 term.

NetChoice's reaction and the next steps

NetChoice, which had obtained the initial injunction against Ohio's law, announced its intention to bring the case before the full 6th Circuit — a procedure called en banc — or directly before the Supreme Court. The group argues that this decision creates a "circuit split" with other appeals courts that have blocked similar laws, which is precisely the type of divergence that SCOTUS is supposed to resolve. The Electronic Frontier Foundation (EFF) has already signaled it will intervene as amicus curiae in any future proceedings, arguing there is no "child exception" to the First Amendment.

In parallel, Ohio has six months to implement the age verification mechanisms required by its law. Platforms will need to design systems that identify minor users — a technically complex task that raises its own privacy concerns. Verifying a user's age online without creating a sensitive identity database is a challenge the industry claims is unsolvable without violating other fundamental rights.

Virginia and the Strategy of Time, Place, and Manner Laws

SB 854: the one-hour-a-day law

Virginia had tried a different approach with SB 854, adopted in early 2026. Rather than a total ban or a parental consent system, the state capped daily social media use by minors at one hour. The reasoning was simple: even if courts refuse outright prohibitions, they might accept time, place, and manner restrictions that apply neutrally regardless of content.

But Judge Patricia Giles of the Eastern District of Virginia was not persuaded. In her ruling of February 27, 2026, she held that limiting access to one hour per day constitutes a substantial restriction on minors' right to speak and inform themselves on platforms that have become essential to civic, social, and cultural life. The state of Virginia immediately appealed to the 4th Circuit. A decision is expected in the coming months.

The eight states with laws still in force

Despite injunctions, eight states had managed to keep laws partially in force in the fall of 2025, according to an inventory published by the specialized platform MultiState. These laws typically survive because they limit themselves to notification requirements or age verification rather than access prohibitions — a distinction some courts have found less injurious to the First Amendment. Mississippi is the most commonly cited example: its law, though contested, remained in force thanks to the Supreme Court order of August 2025.

The Harvard Law Review, in a February 2026 article, proposed a constitutionally stronger path: laws targeting not the age of users but the specific design features of platforms — addictive recommendation algorithms, repeated push notifications, infinite-scroll news feeds — that would be regulated neutrally for all users. This "content neutrality" approach for product design is the one the academic article judges most likely to survive strict scrutiny.

Adolescent Mental Health — The Scientific Evidence

A real, documented crisis

This legal debate does not take place in a vacuum. Epidemiological data on American adolescent mental health since 2012 — the year smartphones became widespread — are alarming. Clinical depression rates among girls aged 14 to 17 nearly doubled between 2010 and 2023. Hospitalizations for self-harm among teenage girls increased by 188% between 2009 and 2019. Psychologist Jonathan Haidt, in his book "The Anxious Generation" (2024), systematically documented the correlation between the adoption of smartphones and social media and the deterioration of adolescent mental health across all Western countries.

Platforms dispute this causality. They commission and publish studies showing effects are weak or nonexistent, or that social media even have positive effects on marginalized young people who find community there. But internal Meta documents, revealed in legal proceedings from 2021 to 2024, show the company had known for years that Instagram was worsening body image disorders in teenage girls. The industry's good faith is, at minimum, open to question.

The BMJ and evidence of causation

A meta-analysis published in the British Medical Journal in 2026 analyzed 72 longitudinal studies covering more than 400,000 adolescents in 17 countries. Its conclusions are nuanced but significant: social media use beyond three hours daily is associated with a statistically significant increase in depressive and anxiety symptoms in girls, with a smaller but present effect in boys. The effect is amplified for adolescents consuming social comparison content — lifestyle photos, beauty filters, popularity metrics.

This data is precisely what legislators cite in their legislative preambles. But federal courts have so far held that even solid evidence of harm is insufficient to justify restrictions on freedom of expression — at least without demonstrating that the law is the least restrictive means of achieving the protective objective. Alternatives such as media literacy education, voluntary parental control tools, or algorithmic reform are systematically invoked by courts as less restrictive means.

The Rights of Minors — A Fundamental Philosophical Question

Do minors have the same constitutional rights as adults?

American jurisprudence on the rights of minors is complex and often contradictory. In Tinker v. Des Moines (1969), the Supreme Court affirmed that students do not "shed their constitutional rights at the schoolhouse gate." But in Bethel School District v. Fraser (1986) and Morse v. Frederick (2007), it recognized that the government can impose restrictions on minors' speech in certain contexts that would not be accepted for adults. The question is whether the digital environment constitutes such a context.

The EFF and other civil liberties organizations argue there is no "child exception" to the First Amendment: the Supreme Court has repeated in decisions like Reno v. ACLU (1997) that the state cannot reduce the speech available to adults to the level appropriate for children. But legal scholars like Mary Anne Franks of the University of Miami argue that this jurisprudence was intended to protect adults, not to authorize corporations to commercially exploit children under the banner of free expression.

The European model as a counterpoint

While the United States wrestles with its First Amendment, the European Union has taken a radically different approach. The Digital Services Act (DSA) and the European Regulation on the Protection of Minors Online impose strict age verification obligations and default protections for minors on platforms — without raising the constitutional problems that paralyze American legislators. The United Kingdom adopted its own Online Safety Act in 2023, which is being implemented with "safety by design" requirements for digital products used by children.

This transatlantic divergence is significant. It reveals that the American difficulty is not simply a question of political will — it is a unique structural constitutional constraint. No other liberal democracy has an equivalent to the American First Amendment in its absolute dimension. What makes the American debate fascinating also makes it potentially unmanageable.

The Tech Industry — The Hypocrisy of the Platforms

Building for children, banning their own children

In 2017, Apple co-founder Steve Jobs had revealed that his children did not use the iPad. In 2023, Twitter-turned-X founder Jack Dorsey stated he strictly limited his children's access to social media. In 2024, a Wall Street Journal investigation revealed that many executives at Meta, Google, and TikTok send their own children to schools that ban smartphones. Silicon Valley protects its own. It sells to everyone else.

This hypocrisy carries a political capital cost. When senators like Marsha Blackburn and Richard Blumenthal summoned the CEOs of major platforms during Senate hearings in January 2024, the scene left its mark: Mark Zuckerberg turned toward the tearful parents in the hearing room and said "I'm sorry." Two years later, Meta continues to pursue states attempting to regulate its practices toward minors in federal courts.

The legal strategy of NetChoice

NetChoice — whose members include Meta, TikTok, YouTube (Google), Snapchat, and X — has invested tens of millions of dollars in a systematic legal strategy to block any state regulation. The organization intervenes in virtually every proceeding, deploys top-tier constitutional law teams, and argues — successfully in the majority of cases — that state laws violate the First Amendment and, subsidiarily, the Commerce Clause, which reserves regulation of interstate commerce to the federal Congress.

The Supreme Court already heard two cases involving NetChoice on related issues in 2024 (Moody v. NetChoice, NetChoice v. Paxton), confirming that platforms exercise a protected form of speech in their content moderation. These decisions strengthened the industry's legal position. But they did not permanently close the door on all regulation — and the Ohio 6th Circuit decision of June 2026 is reopening precisely that door.

Toward a Constitutional Path — What Courts Have Not Yet Said

Content neutrality as a way out

The Harvard Law Review of February 2026 offers the most sophisticated mapping of constitutionally viable options. The article advocates for a paradigm shift: instead of targeting the age of users, states should target the design features of products that create the demonstrated harm. A law banning infinite-scroll news feeds, nocturnal push notification systems, and visible popularity metrics (likes, followers) for all users would not discriminate by age or content — it would regulate the commercial conduct of companies.

This approach echoes what American consumer law has long done for other harmful products: banning cigarettes in public spaces does not censor speech; banning loot-box mechanics in video games does not censor game content. Regulating the addictive design of a digital product could be constitutionally more robust than any attempt to control who can use it and when.

The potential role of the federal Congress

A federal solution — an act of Congress rather than a patchwork of state laws — would offer several advantages. It would eliminate the jurisdictional dispersion creating the current inequality across states. It would allow the establishment of uniform technical standards that platforms need to comply with only once rather than fifty times. And a federal law carefully drafted to target product design rather than speech content could better withstand strict scrutiny.

The KOSA (Kids Online Safety Act), proposed in the Senate on multiple occasions, has run into improbable coalitions: progressive civil rights organizations rejected it citing the risk of censoring LGBTQ+ content, while conservative senators blocked it for ideological reasons. The result is federal legislative paralysis during which states attempt alone to fill a void the industry is actively exploiting.

Conclusion: The Constitution as Industry's Shield

A debate that is only beginning

The 6th Circuit decision in June 2026 has reopened a debate many thought closed. If the full circuit, and then the Supreme Court, confirm that states can require parental consent without violating the First Amendment, that creates a replicable model for the entire nation. If on the contrary SCOTUS invalidates this approach, legislators will need to turn to more sophisticated strategies — product design regulation, civil liability for platforms, federal standards — to protect children in the digital environment.

What is certain is that the status quo — more than 40 states passing laws that fall one after another in court, billions spent on legal fees, and teenagers still exposed to the same algorithms — is not acceptable. American democracy found ways to regulate cigarettes, alcohol, firearms, and pharmaceutical drugs. It will find, one day, a way to regulate digital platforms without sacrificing freedom of expression. The question is how many generations of teenagers will pay the price of this constitutional delay.

One certainty in the uncertainty

One thing is clear: when the archives open in twenty years, the internal documents of Meta, TikTok, and YouTube will show what the internal documents of Big Tobacco showed — that the industry knew, that it concealed, and that it deliberately chose to protect its revenues rather than its most vulnerable users. The tobacco story ended with massive convictions, compensation funds, and regulation that saved millions of lives. The story of digital platforms and minors is being written right now. It will end the same way. The only variable is time.

In the meantime, American federal courts will continue to navigate between child protection and freedom of expression, between public health and constitutional rights, between scientific data and legal precedents. That is the nature of a constitutional democracy — having to reconcile values in tension. But when the result of that reconciliation is the systematic commercial exploitation of 13-year-olds, something in the equation deserves to be reconsidered.

By Maxime Marquette, columnist

Columnist's transparency note

Editorial position

This article represents the opinion and analysis of columnist Maxime Marquette, based on publicly available and verifiable sources. The positions expressed in the editorial passages (em tags) reflect the personal viewpoint of the columnist and not any institutional position. No fictional testimony, invented scenes, or fabricated sources appear in this article. All court decisions, statistics, and facts cited are documented in the Sources section.

Limits and uncertainties

The legal situation described in this article evolves rapidly. The information reflects the state of proceedings as of June 27, 2026. Subsequent decisions may have modified the legal landscape. The correlation between social media use and adolescent mental health, while documented by numerous studies, is subject to ongoing academic debate on causation. The columnist acknowledges this nuance while judging that the weight of available evidence justifies preventive action.

Sources

Primary sources

Politico Digital Future Daily — "Social media bans collide with free speech" — June 22, 2026

Reason Magazine — "6th Circuit backs ban on Ohio minors using social media without parental permission" — June 22, 2026

Jurist — Federal appeals court restores Ohio social media restrictions for minors under 16 — June 20, 2026

Techdirt — "Moral Panic Beats First Amendment In Sixth Circuit's Ohio Social Media Ruling" — June 22, 2026

ABC News — "Court orders Ohio restrictions on kids' use of social media restored" — June 18, 2026

Secondary sources

Reuters — Judge blocks Virginia law restricting social media for children — February 27, 2026

Harvard Law Review — "Content Neutrality for Kids: Intermediate Scrutiny for Social Media Age Verification Laws" — February 2026

EFF — "States Tried to Censor Kids Online. Courts, and EFF, Mostly Stopped Them: 2025 in Review" — December 2025

SCOTUSblog — Mississippi restrictions on children's social media access — August 2025

MultiState — "Eight States Enact Minor Social Media Bans Despite Court Fights" — October 2025

DLA Piper — Virginia's Social Media Time-Limit Law for Minors Blocked — March 2026