Case Thomason (University of Michigan Law School) has posted Scalpels, Not Hatchets: Beyond Access Bans and Toward a Design-Based Framework for Social Media Regulation on SSRN. Here is the abstract:
State legislatures have enacted more than a dozen statutes restricting minors’ access to social media platforms in response to mounting evidence of harm to minors’ mental health. Nearly every one of these laws has been struck down in federal court before taking effect. The problem is structural, in that lawmakers have been using hatchets rather than scalpels to address this issue. Hatchets are sweeping, access-based restrictions that condition minors’ access to platforms on age verification or parental consent. In contrast, scalpels are precise, design-based regulations that target specific platform features such as infinite scroll, push notifications, and engagement-maximizing recommendation algorithms rather than platform access itself. Though states’ hatchet-like solutions trigger strict scrutiny under the First Amendment, legislatures could avoid this outcome by enacting content-neutral regulations and target the actual mechanisms through which platforms cause harm. This Note examines the landscape of recent social media legislation, develops a constitutional theory for design-based alternatives grounded in editorial discretion and a content-neutrality framework, and provides a model statute with drafting annotations for legislators seeking to protect minors from social media’s documented harms, without running afoul of the First Amendment.
Recommended.
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