Future generations will look back at the early 21st century and see an extraordinary experiment: society delegating the socialization and moral education of its children to screens. Instead of looking to parents, teachers, and coaches for guidance, social approbation, and norms of behavior, young people now look to TikTok influencers and viral Instagram accounts, and the ubiquitous, and often sinister, judgment of their social media networks.

From radio and movies to television and video games, conservatives have long decried the influence of popular culture on childhood development. Similarly, as Shakespeare’s Prince Hal’s treatment of Falstaff reminds us, bad friends can have bad influences. Yet somehow society has survived despite Porky’s, Grand Theft Auto, and the bad egg on your kids’ soccer team.

But social media seems different. Its endemic and intrusive nature, as well as its exploitation of behavioral tendencies and peer pressure, seems new—and particularly pernicious. And this conclusion is not simply the hunch of an armchair culture critic. Social science is beginning to agree.

Psychologists and other social scientists have observed that around 2012, something began to go wrong in the lives of teens. As San Diego State University psychologist Jean Twenge, NYU’s Jonathan Haidt, and others have shown, depression, loneliness, and suicide all increased sharply among U.S. adolescents between 2011 and 2019, with similar trends worldwide. The correlation between this uptick and the expansion of social media among teens is striking and inescapable. And evidence is growing that social media use has a deleterious causal effect on youth—not just an associational relationship.

Both federal and state law has been flat-footed in response, largely because U.S. Supreme Court decisions, at the infancy of the world wide web, limited Congress’s power to regulate the internet to protect children in such cases as Reno v. ACLU and Ashcroft v. ACLU.

In Reno, the Court struck down portions of the 1996 Communications Decency Act. There, Congress prohibited the “knowing transmission of obscene or indecent messages to any recipient under 18 years of age” or the “knowing sending or displaying of patently offensive messages in a manner that is available to a person under 18 years of age.” The Reno Court struck down this provision, finding its prohibitions so vague that they would limit First Amendment-protected speech. 

The complete lack of regulation to protect children online contrasts to other media such as movies and broadcast radio and television. Industry self-regulation, with the threat of government action and strong social pressure, kept movies and radio family friendly for decades. And, when that system frayed, the Supreme Court approved of the FCC’s indecency regulations in Pacifica Radio.

Thus, the way forward requires either (1) changing Supreme Court precedents or (2) finding work-arounds. Changing precedent should be a real option because the Court’s decisions concerning the internet and children have not aged well. For instance, Reno rests on several factual grounds that now seem quaint—if not tragically wrong. To take one such example, the Court found that “the Internet is not as ‘invasive’ as radio or television . . . [and] that [c]ommunications over the Internet do not ‘invade’ an individual’s home or appear on one’s computer screen unbidden. Users seldom encounter content by accident . . . [and] odds are slim that a user would come across a sexually explicit sight by accident.” Hmmm . . . . Facebook’s total ban on nude pictures is based on the concern, held strongly by advertisers, that people will see explicit pictures by accident on social media.

If the Court were to re-examine its priors, it might be open to federal rules requiring age-verification for websites or services offering pornographic or other child-inappropriate materials. Similarly, the federal government and states could pass—or just enforce more vigorously—laws prohibiting the sending or transmission of obscene or indecent material to minors. Such actions were illegal for 100 years. The use of the internet as a medium shouldn’t shield such acts from legal consequences.

But even if the Supreme Court does not change its mind in the near future, there are work-arounds currently being developed at the federal and state levels. For instance, a recent report by the Institute for Family Studies, Protecting Teens From Big Tech: Five Policy Ideas for States, advocates, in addition to age-verification requirements and mandated parental access to children’s social media accounts, the requiring of parental consent for contractual offerings over the internet to those under the age of 18. Contract law is, for the most part, state law, and so states could prohibit a social media company or website from offering any account, subscription service, or contractual agreement to a minor under 18 years old in their state, absent parental consent.

This law would be quite controversial, but it stands on firm First Amendment grounds. As a general rule, all contracts by a minor with certain exceptions are voidable. And even though a minor can void most contracts he enters into, most jurisdictions have laws that hold minors accountable for the benefits they received under the contract. Thus, children can make enforceable contracts for which parents could end up bearing responsibility—and the state has an interest in regulating contracts minors enter into.

Given how the Court, and society in general, has misunderstood and underestimated the negative effects of social media on young people, we should be open to re-examining precedent and examining new approaches to controlling how online experiences impact kids.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].