11th Circuit: Georgia SB 351 Minors Social Media Law Reinstated

• The 11th Circuit Court of Appeals has reinstated Georgia's SB 351, a law restricting minors' social media use.
• The court ruled that NetChoice, a tech lobby group, failed to prove the law violated its members' First Amendment rights.
• SB 351 requires age verification, parental consent for users under 16, and limits data use for ads targeting minors.
• The court distinguished between platforms based on the type of content they host, noting that not all speech is fully protected for minors.
• This decision follows a similar 11th Circuit ruling on Florida's social media law for minors, indicating a regional trend.

This nuanced approach suggests that the First Amendment does not offer a blanket protection across all digital content, especially concerning minors.

The 11th Circuit Court of Appeals has reinstated Georgia's Senate Bill 351, a law designed to regulate minors' access to social media platforms. This decision, issued on Thursday, overturns a lower court's preliminary injunction that had previously blocked the law from taking effect. The federal appeals court, in a 25-page opinion, found in favor of the state of Georgia, concluding that the tech industry lobbying group NetChoice had not adequately demonstrated how the legislation infringed upon its members' First Amendment rights.

NetChoice, which represents major technology companies such as Meta, Google, Amazon, and X, had initiated the legal challenge, asserting that SB 351 unconstitutionally restricts the free speech of these digital platforms. While the three-judge panel acknowledged NetChoice's associational standing to bring the lawsuit on behalf of its members—a position consistent with rulings from numerous other courts—it ultimately determined that the group failed to meet its burden of proof. This ruling means that social media companies operating in Georgia must now prepare to comply with the law's provisions.

Georgia's SB 351, enacted in 2024, aims to impose significant restrictions on how minors interact with social media. The law mandates that platforms implement age verification for all users. Crucially, it prohibits individuals under the age of 16 from creating social media accounts without explicit parental consent. Furthermore, the legislation imposes limitations on the use of personal data for advertising purposes targeting users under 16 years old.

The statute defines a "social media platform" broadly as an online forum enabling account holders to create profiles, upload and view posts, establish connections, and engage in public and private interactions with other users. However, the law also specifies a range of exceptions. These include services such as email, streaming platforms, news websites, sports content providers, online shopping sites, and other forms of content that are preselected by the provider rather than being user-generated. These exceptions indicate a focus on platforms primarily driven by user-generated content and social interaction.

Central to the 11th Circuit's decision was a nuanced interpretation of First Amendment protections in the context of diverse social media content. U.S. Circuit Judge Kevin Newsom, a Donald Trump appointee, authored the panel's opinion, explaining that not all social media platforms exclusively host "fully protected" speech. The court highlighted that certain platforms, such as X and Reddit, are known to host pornography, which, while protected for adults, does not receive the same constitutional protection when accessed by minors.

This distinction led the court to conclude that the application of SB 351 to platforms like X and Reddit presents different First Amendment considerations compared to its application to other types of social media. Judge Newsom articulated that depending on the specific nature of the speech hosted by each platform, varying levels of scrutiny might be appropriate, potentially leading to different outcomes regarding the constitutionality of SB 351's enforcement. The judges categorized platforms into "conventional" (hosting fully protected speech), "hybrid" (mostly protected but with some potentially unprotected content like pornography), and "rogue" (hosting exclusively unprotected speech, such as hypothetical sites like "Incitement.com"). This nuanced approach suggests that the First Amendment does not offer a blanket protection across all digital content, especially concerning minors.

The 11th Circuit's ruling on Georgia's social media law for minors follows closely on the heels of another significant decision from the same court. Just one day prior, on Wednesday, the 11th Circuit vacated a preliminary injunction against a similar Florida law. That Florida legislation bans social media accounts for children under 14 and requires parental consent for 14- and 15-year-olds, indicating a regional trend in judicial willingness to allow such state-level regulations to proceed.

NetChoice has been actively challenging nearly a dozen comparable state laws across the country, including those in Texas, Ohio, Arkansas, California, Nebraska, Utah, Virginia, Florida, Mississippi, Louisiana, and Tennessee. While most of these laws currently remain blocked by preliminary or permanent injunctions, the recent decisions from the 11th Circuit could signal a shift in the legal landscape. This ongoing legal battle also recalls a 2022 U.S. Supreme Court decision where the high court sided with NetChoice in a challenge to Florida and Texas laws concerning content moderation, instructing the 11th Circuit to consider the full scope of such laws' applications when addressing facial challenges. The current ruling on Georgia social media law suggests a more granular analysis of content types and user demographics.

Compliance officers at social media platforms must now assess their operations in Georgia for adherence to SB 351's age verification and parental consent requirements for minors, as the 11th Circuit has reinstated the law. This ruling also signals a nuanced judicial approach to First Amendment challenges based on the type of content hosted by platforms, which could influence litigation in other states.

Source: Reporting based on 11th Circuit's ruling