Even If Social Media Is Hurting Kids, Regulating It Won’t Be Easy

tech.hindustantimes.com:

Warning: The surgeon general has determined that social media is harmful to your mental health, at least if you're a teen.

Ordinarily, a sentence like that, which isn't an unfair summary of US Surgeon General Vivek Murthy's recent report on social media and youth mental health, would strike terror in the heart of the industry targeted by the advisory. Society typically outlaws minors from using products deemed unhealthy, such as cigarettes and alcohol.

When it comes to social media, however, the regulatory response to the surgeon general's report will have to be tempered in an entirely different way. That's because of a little thing called the First Amendment. The use of social media falls almost entirely into the category of expressive speech — which makes bans (like Montana's prohibition on TikTok) and age limits (like the one proposed by a bipartisan group of senators) much tougher to pass.

Before I analyze the legal difficulties associated with regulating teen use of social media, let me make my regular disclosure that I advise social media companies like TikTok and Meta on issues related to free speech. I'm also a constitutional law professor. And under existing constitutional doctrine, the government can't outlaw speech acts, even for teens, without going through a rigorous process of justification.

The courts apply what is called strict scrutiny to any direct regulation of expressive speech. In practice, that means the government must show that it has a compelling interest — a valid reason — to restrict speech and also that the regulation adopted is narrowly tailored to achieve that goal. Put another way, the government must adopt the least restrictive means of achieving its compelling interest.

That means that if