I only see these as approximate precedents in the rough sense that they involve limiting minors’ access to speech. Otherwise, factually, I can see several distinguishing features:
- social media being optimized for addiction
- social media potentially compromising minors’ physical safety
- social media use having documented adverse mental health outcomes for minors
- the fact that social media use requires an ongoing contractual relationship between the company and the minor
I could see these factors tipping the balance on the “compelling government interest” question, though I see less of an argument for “narrow tailoring”.
Well, the test courts use when they evaluate the constitutionality of a law that curtails a fundamental right (such as speech) is twofold: 1) Does the law serve a compelling government interest? 2) Is the law narrowly tailored to serve that interest?
The features I listed all relate to “protecting the children” in some way, which is why I thought they could be the basis for courts to distinguish previous case law regarding the first part of the test.
> Well, the test courts use when they evaluate the constitutionality of a law that curtails a fundamental right (such as speech) is twofold: 1) Does the law serve a compelling government interest? 2) Is the law narrowly tailored to serve that interest?
Almost right. Strict scrutiny has a third factor [1]: Does the law use the available method which is least restrictive of speech?
An alternative method to banning young children on social media could be to apply the caretaker-consent-or-ban condition on social media only for students on the physical premises of public schools while having the public schools teach students the pros and cons of social media (hopefully noting that social media is more helpful than harmful for most teenagers [2]). Enforcement would fall on parents and public school teachers. That's less restrictive of minors' speech rights because the ban doesn't apply everywhere, and also less chilling of social media sites' speech rights because having to collect more of users' personal information for age verification is burdensome. Not saying that my example method is a good one, just more likely to pass strict scrutiny.
I almost feel embarrassed to be so pedantic, but it's actually not clear that it is a third factor. Quite a few scholars interpret this requirement as being a component of "narrow tailoring", or vice versa. Realistically, I don't think many cases will hinge on this distinction: if a less restrictive method exists that can serve the compelling interest comparably well, then of course the more restrictive method isn't narrowly tailored, and is overbroad.
Thinking about this, the government is all over the place. A 16 year old minor can decide for themselves, the government trusts a parent to make the decision for a 14-15 year old, and the government doesn't trust anyone to make the decision for a 13 year old. Either a kid needs to be protected or they don't. If they do, either you trust the parents to make the decision or you don't.
I can't think of a single argument that fits with trusting a parent's choice for a 14 year old that doesn't trust it for a 13 year old, that also ignore's that parent's choice for a 16 year old.
Those aren't factual though, those are one just one side of an opinionated argument. Social media can also be argued to have positive values. IE, I would argue that most kids use social media not because of being addicted, but because they find and form new types of communities:
Given it's Florida and the political leanings of it's governor, I would argue the law is more in line with CCP/Communist values: attempt to disrupt the communication networks of a demographic that is highly against you.
This is one of those times when legal English sounds like everyday English, but isn't. In this context, "factual" doesn't mean "proven true", but rather "of the category of issues that are factual in nature" (instead of legal in nature). The point here is that the factual bases Florida will offer in support of there being a compelling governmental interest are somewhat different (and probably better substantiated) than the factual bases California gave in Brown, for example.
The reason this matters is that the precedential effect of a prior opinion such as Brown depends on how similar the underlying facts are to the present dispute. If a court wants to go in a different direction, it will usually prefer not to overturn the previous opinion, but rather to say that it doesn't apply here because the facts are different.
According to Jonathan Haidt's research, most teens would prefer to not be on social media because they recognize the toxicity of it but feel compelled to be on it because they have FOMO.
- social media being optimized for addiction
- social media potentially compromising minors’ physical safety
- social media use having documented adverse mental health outcomes for minors
- the fact that social media use requires an ongoing contractual relationship between the company and the minor
I could see these factors tipping the balance on the “compelling government interest” question, though I see less of an argument for “narrow tailoring”.