Last week, TechFreedom filed an amicus brief urging the U.S. Court of Appeals for the Fourth Circuit to affirm a district court order blocking Virginia’s Senate Bill 854, which requires social media platforms to verify every user’s age and to cap minors under 16 at one hour of use per platform per day. TechFreedom’s brief explains why the Act is subject to strict scrutiny under the First Amendment, which it cannot meet.

“SB 854 is clearly subject to strict scrutiny,” said Andy Jung, Associate Counsel at TechFreedom. “Virginia’s law spares powerful, institutional speakers like the Washington Post and ESPN while targeting the comparatively powerless—the people for whom social media is the best outlet to spread a message. This a textbook speaker- and content-based regulation of speech, picking winners and losers in the marketplace of ideas. No matter how loudly Virginia insists otherwise, online age verification, implemented in service of an hourly meter, is a substantial burden on speech.”

“Supreme Court precedents applying intermediate scrutiny are of no help to Virginia,” Jung continued. “Free Speech Coalition v. Paxton concerned pornography obscene to minors, a category of speech historically unprotected for children and, going forward, only partially protected for adults. TikTok v. Garland was a national-security case addressed in an emergency posture that the Court itself stressed was narrow and limited to a foreign-adversary-controlled platform. And Turner Broadcasting System v. FCC concluded that the speaker-based distinction before it was not content-based, for reasons not present here. None of these cases gives Virginia cover to age-verify, meter, or ration the sixty-first minute of fully protected social-media speech.”

“Virginia’s alarmism about the harms and perils of social media is the latest in a long line of tech-driven moral panics,” Jung concluded. “As with past panics, rhetoric has run far ahead of the evidence. But even if social media were as risky as Virginia suggests, Virginia would still have to comply with the First Amendment. SB 854 does not do so.” 

The case is NetChoice v. Jones, No. 26-1252 (4th Cir.).

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TechFreedom is a nonprofit, nonpartisan technology policy think tank. We work to chart a path forward for policymakers towards a bright future where technology enhances freedom, and freedom enhances technology.

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