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New Florida law restricts First Amendment rights online

Similar laws in Arkansas, Ohio, and Utah have hit constitutional roadblocks. Expect the same for Florida’s unconstitutional law.
Gov. Ron DeSantis speaks at The Freedom Institute of Collier County in Naples

Jonah Hinebaugh / Naples Daily News / USA TODAY NETWORK

Gov. Ron DeSantis, shown here in Naples, Florida, on Feb. 28, signed House Bill 3 into law today.

The Florida legislature has once again chosen to limit its citizens’ free speech rights — this time by passing House Bill 3, which severely restricts Floridians’ access to websites and content on the internet. 

HB 3 bans most minors from having accounts on social media platforms and forces others to get parental consent. The bill also requires adult websites which contain material “harmful to minors” to conduct age verification on every user — not just minors — who visit such sites.

HB 3 has many similarities with prior Florida bill HB 1, which the legislature passed earlier this session. Gov. Ron DeSantis vetoed HB 1 — just as FIRE urged due to its blatant First Amendment problems — but ultimately struck a deal with the legislature to pass HB 3, which contains the same constitutional defects

Today, despite FIRE’s warnings, Gov. DeSantis signed HB 3. Other states must avoid Florida’s example and reject similar unconstitutional legislation.

Social media bans and parental consent

HB 3 prohibits people under 14 years old from having social media accounts and requires 15- and 14-year-olds to obtain parental consent in order to obtain an account.

This flies in the face of the First Amendment and decades of Supreme Court law holding that minors have strong free speech rights. As Justice Lewis Powell wrote in Erznoznik v. Jacksonville, “minors are entitled to a significant measure of First Amendment protection, and only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to them.” 

Just as the First Amendment bars the government from banning adults from communicating online, or banning children from reading newspapers without a parent’s consent, it bars the government from imposing these kinds of regulations on young people’s use of social media. 

The Supreme Court illustrated this principle in Brown v. Entertainment Merchants Association, the latest in a long line of cases explaining the government’s limited authority to regulate minors’ access to speech. In Brown, the Court invalidated a California law that prohibited selling violent video games to purchasers under age 18, even though the law effectively allowed minors to access such games with a parent's consent. As Justice Antonin Scalia wrote for the majority, the government does not have “a free-floating power to restrict the ideas to which children may be exposed.” 

Justice Scalia went on to note that although parents have “the power to control what their children hear and say,” a governmental prohibition doesn’t “enforce parental authority over children’s speech.” Instead, such a prohibition “impose[s] governmental authority” over it. In other words, the fact that a parent can regulate their child’s speech does not mean the First Amendment allows the government to do so as well.

Eroding anonymous speech on social media

Florida HB 3 also burdens the right of kids and adults to speak anonymously on social media. 

By banning social media accounts for users under 13, or under 16 without parental consent, the bill requires both teens and parents to reveal their identities to verify their relationship and the parent’s consent. In doing so, the provision eliminates anonymity for everyone — adults and minors.

The bill also requires platforms to terminate accounts belonging to someone under the age limits, or whom the platform “treats or categorizes” as belonging to someone under the age limits, and gives them 90 days to “effectively dispute the termination.” The bill doesn’t say what is required to “effectively dispute the termination,” but it’s not technically possible to verify one’s age without handing over personally identifying information to someone. As such, adult account holders whose accounts are flagged for termination will need to dispense with their anonymity in order to maintain their accounts.

We are disappointed that Gov. DeSantis signed this unconstitutional legislation. HB 3 will place substantial restrictions on Floridians’ access to protected speech online. 

This implicates First Amendment protection of the right to anonymous speech. During the country’s founding, anonymous pamphlets advocated breaking away from England, and then for ratification of the Constitution. In keeping with that legacy, numerous court cases have invalidated laws and ordinances that required speakers and/or those who listen to or view speech to identify themselves. As the Supreme Court explained: “The decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one’s privacy as possible.” 

HB 3 breaks with this important precedent, eliminating free speech protection that Floridians, like all Americans, have long enjoyed. 

Similar laws in other states have hit constitutional roadblocks 

FIRE warns that these kinds of restrictions on social media will not survive judicial scrutiny, and courts have invalidated on First Amendment grounds provisions similar to HB 3 in other states. A federal court in Arkansas issued a preliminary injunction blocking a state law requiring age verification for access to online content and requiring parental permission for minors to have social media accounts. And an Ohio federal court did the same to a state law requiring parental consent for people under 16 to have social media accounts. 

In January, faced with a lawsuit from FIRE and others challenging a state law that required age-verification for social media users, Utah passed legislation to push back the law’s effective date, then repealed it and passed a replacement law. Yet while the new statute substantially modified the initial restrictions, it still imposes problematic limits on minors’ social media accounts. 

Eliminating anonymous access to adult material

HB 3 also raises constitutional issues in requiring all users to submit to age verification in order to access sites that distribute content deemed “harmful to minors” if more than one-third of the content meets the bill’s definition of that term. 

But the bill’s definition of “harmful” encompasses content that the First Amendment protects. While the government may restrict some speech to minors that cannot be restricted to adults, this authority is very narrow, and even when trying to serve a legitimate interest like protecting children, it cannot burden adults’ speech more than is absolutely necessary to achieve its goal. 

Courts have thus consistently invalidated laws like HB 3 that prohibit access to online content absent age verification, due largely to the burden verification imposes on all users, not only minors. In Reno v. ACLU, the Supreme Court invalidated provisions of the Communications Decency Act that criminalized distribution of “indecent” or “patently offensive” material on the internet if it could be viewed by a minor. The law allowed sites to avoid liability if they used age verification or took “good faith, reasonable, effective, and appropriate actions" to restrict minors’ access, but the Court held the CDA suppressed “a large amount of speech that adults have a constitutional right to receive.” It thus ultimately held the CDA provisions unconstitutional, because Congress could have used less restrictive means to limit minors’ access to this content.

Hannah Zoulek

LAWSUIT: Utah’s clumsy attempt to childproof social media is an unconstitutional mess

Press Release

FIRE sued Utah officials over the new law that requires every social media user in the state to verify their age.

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Not long after Reno, the Court considered the constitutionality of the Child Online Protection Act, which restricted content “harmful to minors” using a definition nearly identical to that in HB 3. As in Reno, COPA included a provision that allowed adult content distributors to avoid conviction if they restricted minors’ access through measures like requiring a credit card, a “digital certificate that verifies age,” or “any other reasonable measures that are feasible under available technology.”

Lower courts preliminarily blocked COPA on the grounds it was unlikely to be the least restrictive way of preventing minors from accessing adult content online. On review, the Supreme Court in Ashcroft v. ACLU agreed with the lower courts, holding the government was unlikely to be able to show the age verification provision was “the least restrictive means among available, effective alternatives” to serve Congress’s goal. The Court noted Congress’s promotion of parents’ use of voluntary filtering technology may be a less restrictive means that would allow “adults without children [to] gain access to speech they have a right to see without having to identify themselves or provide their credit card information.”

HB 3’s age verification requirement will fare similarly in court. 

Bottom line

We are disappointed that Gov. DeSantis signed this unconstitutional legislation. HB 3 will place substantial restrictions on Floridians’ access to protected speech online. We urge the states currently considering bills similar to HB 3 to respect the First Amendment rights of their citizens and avoid wasting resources defending an unconstitutional law in court. Protecting children is a laudable goal, but enacting futile and unconstitutional legislation does not protect anyone.

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