\n\tMark Kreidler<\/span><\/p>\n

California lawmakers are pursuing legislation aimed at protecting children from the dangers of social media, one of many efforts around the country to confront what U.S. Surgeon General Vivek Murthy and other public health experts say is a mental health emergency among young people.<\/p>\n

But California\u2019s efforts, like those in other states, will likely face the same legal challenges that have thwarted previous legislative attempts to regulate social media. The tech industry has argued successfully that imposing rules regulating how social media operate and how people can use the online services violates the free speech rights of the companies and their customers.<\/p>\n

A previous effort at confronting the issue, the California Age-Appropriate Design Code Act<\/a> in 2022, now rests with the U.S. Court of Appeals for the 9th Circuit. A tech trade association sued to block the law and won an injunction from a lower court, largely on First Amendment grounds. The appeals court heard oral arguments in the case on July 17.<\/p>\n

\u201cAt the end of the day, unconstitutional law protects zero children,\u201d said Carl Szabo, vice president and general counsel for NetChoice, which argued for the tech giants before the federal appellate court.<\/p>\n

Like the design code act, the two proposals now working their way through the California Legislature would reshape the way social media users under 18 interact with the services.<\/p>\n

The first bill<\/a>, by state Sen. Nancy Skinner (D-Berkeley), prohibits sending push notifications to children at night and during school hours. Skinner\u2019s measure also requires parental permission before platforms can send social media offerings via algorithms, which are designed to offer feeds that children didn\u2019t ask for but might keep them looking at their phones longer, rather than the traditional chronological feeds of those they follow on the app.<\/p>\n

The second measure<\/a>, by Assemblymember Buffy Wicks (D-Oakland), would amend California\u2019s privacy laws to prohibit businesses from collecting, using, selling, or sharing data on minors without their informed consent \u2014 or, for those under 13, without their parents\u2019 approval.<\/p>\n

Both bills have bipartisan support and are backed by state Attorney General Rob Bonta. \u201cWe need to act now to protect our children,\u201d Bonta said earlier this year, by \u201cstrengthening data privacy protections for minors and safeguarding youth against social media addiction.\u201d<\/p>\n

California Gov. Gavin Newsom, a Democrat, has been vocal about youth and social media, too, and recently called for a statewide ban on cellphones in schools. His positions on the two social media proposals are not yet known. \u201cBut I think the governor, like most every other Californian, is concerned about the harms of social media on kids,\u201d Skinner said.<\/p>\n

California\u2019s efforts are especially significant because its influence as the most populous state often results in its setting standards that are then adopted by other states. Also, some of the big tech companies that would be most affected by the laws, including Meta, Apple, Snap, and Alphabet, the parent company of Google, are headquartered in the state.<\/p>\n

\u201cParents are demanding this. That\u2019s why you see Democrats and Republicans working together,\u201d said Wicks, who with a Republican colleague co-authored the design code act that is tied up in litigation. \u201cRegulation is coming, and we won\u2019t stop until we can keep our kids safe online.\u201d<\/p>\n

The fate of the design code act stands as a cautionary tale. Passed without a dissenting vote, the law would set strict limits on data collection from minors and order privacy settings for children to default to their highest levels.<\/p>\n

NetChoice, which immediately sued to block the law, has prevailed in similar cases in Ohio<\/a>, Arkansas<\/a>, and Mississippi<\/a>. It is challenging legislation in Utah<\/a> that was rewritten after NetChoice sued over the original version. And NetChoice\u2019s lawyers argued before the U.S. Supreme Court that efforts in Texas and Florida<\/a> to regulate social media content were unconstitutional. Those cases were remanded to lower courts for further review.<\/p>\n

Though the particulars differ in each state, the bottom line is the same: Each of the laws has been stifled by an injunction, and none has taken effect.<\/p>\n