Christina on the Constitution: Court Says Florida Social Media Law “Likely Unconstitutional”

Last week, a Florida federal district court granted a renewed motion for a preliminary injunction seeking to enjoin the enforcement of Florida’s social media law (Fla. Stat. § 501.1736). Generally, Florida’s social media law bars social media platforms from allowing those under the age of 14 from creating/having an account and prohibits those who are 14 or 15 from creating/having an account unless a parent/guardian provides affirmative consent. In granting the motion for a preliminary injunction, the court acknowledged that while the bill is “likely unconstitutional,” there are serious concerns over children’s use of social media. One small victory: the court’s order leaves in place provisions that require social media platforms to terminate any account held by a child under 16 upon the request of a parent or guardian.

The Law at Issue

Section 501.1736 applies to “social media platform[s]” that satisfy each of four criteria: 1. Allows users to upload content or view the content or activity of other users; 2. 10% of the users younger than 16 spend an average of 2 hours/day or more on the platform; 3. Employs algorithms that analyze user data to select content for users; and 4. Has at least one addictive feature (infinite scrolling, push notifications, interactive metrics indicating users have engaged with content, auto-play video, and/or live-streaming). See Fla. Stat. § 501.1736(1)(e). Platforms “where the exclusive function is email or direct messaging . . . shared only between the sender and the recipients, without displaying or posting publicly or to other users not specifically identified as the recipients by the sender” are exempted from the law. Id.

Platforms are prohibited from allowing children under 14 to create or hold an account, and the platforms must terminate accounts held by those under 14. For 14-15 year olds, the law prohibits platforms from allowing them to become account holders absent affirmative consent from a parent or guardian and requires platforms to terminate those accounts if the parent/guardian has not provided consent. Account holders who are younger than 14 or between 14-15 (and/or their parents) can request to terminate their accounts, and the platforms must do so promptly (within 5 days if requested by account holder; 10 days if requested by the parent).

The Constitutional Challenge

Computer & Communications Industry Association (“CCIA”) and NetChoice, two internet trade associations, are the plaintiffs challenging this law. Their members include Facebook, Instagram, YouTube, and Snapchat. The court engages in a lengthy discussion on the issue of Article III standing (an issue that previously resulted in the denial of the initial motion for preliminary injunction), and ultimately finds that plaintiffs have associational standing under Article III. After ruling on some technical procedural issues, the court moves into a discussion of the merits.

Injunction Standard

As with every preliminary injunction, the court must find that the moving party has satisfied the following criteria:

1.      Substantial Likelihood of Success on the Merits

2.      Irreparable Injury

3.      Balance of Equities

4.      Injunction Not Adverse to Public Interest

1. Likelihood of Success on Merits

As with any First Amendment challenge, there are obvious threshold questions: 1) does the challenged law implicate the First Amendment at all (i.e. is the law regulating protected speech?); 2) is the law content-based or content-neutral?; and 3) does the government satisfy the requisite showing under the applicable scrutiny level (strict scrutiny if content-based and intermediate scrutiny if content-neutral)?

Generally, a law may trigger First Amendment scrutiny by “directly regulating speech, by regulating ‘conduct that has an expressive element,’ or by imposing a ‘disproportionate burden upon those engaged in protected First Amendment activities.’” (citing TikTok, Inc. v. Garland, 145 S.Ct. 57, 65 (2025)). The court here finds that Florida’s social media law implicates the First Amendment as it directly regulates speech, finding that the law’s application hinges on whether a platform “[a]llows users to upload content or view the content or activity of others.” Further, even assuming the law regulates conduct with an expressive element, the creation of a social media account “is inextricable from the speech element combined in the same course of conduct—namely accessing a forum for speech.” Therefore, the social media law triggers the First Amendment.

After finding the First Amendment applies, the court turns to whether the law is content-based or content-neutral. If the law is content-based, then strict scrutiny (the highest level of scrutiny) applies. If the law is content-neutral, then a less exacting intermediate scrutiny applies. A law is content-based where the law targets speech because of its content, and the law can only survive if the government shows a compelling governmental interest that is narrowly tailored. If the law is unrelated to the content of the speech, then the law is content-neutral and triggers intermediate scrutiny. Under intermediate scrutiny, the government need only show a significant state interest that is no more burdensome on speech than necessary.

a. Content-Based v. Content-Neutral

A law is content based if it applies to particular speech because of the topic discussed or the message expressed. Making matters more complex, sometimes, a law appears facially content-neutral but will nonetheless be treated as content based where the law cannot be justified without reference to the content of the regulated speech or was adopted by the government because of disagreement with the message the speech conveys.  

The court here grapples with whether the law is content-based because it targets “social speech” specifically. The court “tentatively concludes” that it is not. That is because the speech generated on social media platforms can touch on any conceivable topic, message, or idea, and so, the law is not singling out any topic or subject matter for differential treatment.

b. Intermediate Scrutiny

Thus, the court treats the law as content-neutral, subject only to intermediate scrutiny. Intermediate scrutiny (as opposed to strict scrutiny) gives the government more leeway to pursue broader interests. And instead of “narrowly tailored,” the law will pass if it does not burden substantially more speech than is necessary to further the government’s interest.

Here, the court assumes without deciding that the government’s interest in protecting children from compulsive use of social media is a significant government interest. However, the court concludes that Florida’s law is not sufficiently tailored, calling the law “an extraordinarily blunt instrument” for furthering the state’s goal of limiting youth to websites with addictive features. “As applied to Plaintiffs’ members alone, the law likely bans all youth under 14 from holding accounts on, at a minimum, four websites that provide forums for all manner of protected speech: Facebook, Instagram, YouTube, and Snapchat.” The court notes that these platforms can be used to maintain social connections, express oneself, stay informed, and learn from others. “YouTube alone has ‘billions of monthly logged-in users’ and ‘over 500 hours of content are uploaded every minute’ by people spanning ‘more than 100 countries” and who speak more than 80 languages.’”

Is there a lower age limit beyond which children do not enjoy First Amendment protections? The court here does not say. Nor has the Supreme Court ever decided this issue. The court is satisfied that Supreme Court precedent has found a 13-year old has First Amendment rights, and by sweeping in those under 14, the law clearly burdens 13-year olds. The court says minors are “citizens in training” carrying the responsibilities and privileges of citizenship. And, according to the court, “our constitutional system is better served when its citizens build those muscles over time, beginning when they are young, rather than all at once the day they come of age.”

The court summarily finds in favor of the plaintiffs on the remaining injunction criteria and grants the injunction.

Remedy?

So what can be done to curb children’s social media use? The court concludes that while this law cannot stop/prohibit/control minor’s social media use, there is still a remedy. Parents can still request that the platforms terminate their children’s accounts—that portion of the law was not challenged and is left in place. The court says that the parental veto provision is enough to meet the state’s interest. Giving parents the ability to limit the total time their children spend on platforms is directly responsive to the state’s concern that children are compelled to spend too much time on these platforms. To the extent parents don’t know how to use the parental controls available, the court suggested a public education campaign to educate parents about the risks of social media or to inform them with knowledge they need to employ parental control tools.