Mississippi urges court to uphold restrictions on children’s access to social media

Mississippi on Wednesday urged the Supreme Court to leave in place restrictions on access by young people to major social media sites like Facebook, Instagram, and Snapchat. The state’s attorney general, Lynn Fitch, told the justices that although the restrictions had been in effect for other social media sites for over a year, the tech industry group challenging the restrictions “has not identified anyone with a complaint about accessing any platform, one instance of a platform censoring speech, or any platform that has shut down or had any difficulty complying with” the restrictions.

The law at the center of the case, known as House Bill 1126, was enacted after a 16-year-old boy in Mississippi, Walker Montgomery, became the victim of sextortion on Instagram and died by suicide. The law imposes a variety of requirements on both young people and social media sites. Before young people can create social-media accounts, they must obtain their parents’ consent and the social-media sites must verify their ages; the social-media sites must also create a strategy to protect young people from being exposed to harmful material and content that promotes self-harm, bullying, and substance abuse, among other behaviors.

The law imposes civil penalties of up to $10,000 per violation, and criminal penalties may also be imposed.

A tech industry group, NetChoice, challenged the law in federal court as a violation of the First Amendment. U.S. District Judge Halil Suleyman Ozerden barred the state from enforcing H.B. 1126 against several social-media sites that are members of NetChoice.

Ozerden recognized that the state may have “a compelling interest in safeguarding the physical and psychological wellbeing of minors online,” but H.B. 1126 still likely violates the First Amendment, Ozerden explained, because the state’s solution to that problem – barring young people from having any access to social media unless they can obtain their parents’ consent – sweeps too broadly. “NetChoice,” he noted, “has presented evidence that minors’ parents and guardians already have many tools at their disposal to monitor and control their children’s online access.”

Mississippi asked the U.S. Court of Appeals for the 5th Circuit to temporarily freeze Ozerden’s ruling and allow it to enforce the restrictions while it appeals. When the court of appeals agreed to do so, NetChoice came to the Supreme Court, asking the justices to intervene.

NetChoice told the justices that “Mississippi should not be allowed to transform the internet before even one judge has explained why Mississippi’s effort to stifle users’ access to protected expression complies with the First Amendment and why the judicial consensus” among courts that have “recognized the grave First Amendment problems with laws like” H.B. 1126 “is wrong.”

In her brief on Wednesday, Fitch countered that “Mississippi should not have to endure another year of appellate proceedings to get out from under an injunction that the Fifth Circuit already rejected.”

And in any event, she continued, H.B. 1126 is consistent with the First Amendment. As the Supreme Court recently explained in Free Speech Coalition v. Paxton, in which it upheld a Texas law requiring pornography sites to verify the age of their users, she stressed, a law that “exercises a State’s ‘traditional power’ to protect minors and has ‘only an incidental effect on protected speech’” is subject to a less stringent constitutional test, known as intermediate scrutiny, than the district court applied in this case. And H.B. 1126 easily meets that lower standard, she concluded, because it advances Mississippi’s important interest in protecting minors by “put[ting] a guardrail in place before minors are exposed to predators,” and the restrictions that the law imposes  – such as requiring age verification and parental consent – are “sufficiently tailored” to achieve that goal.

Disclosure: Please note that counsel of record for NetChoice is Scott Keller, who is married to Sarah Isgur, a senior editor at The Dispatch. Dispatch Media, Inc. owns SCOTUSblog.