Let the Kids “BeReal” on Social Media

Restricting Internet Use Is a Violation of Young People’s First Amendment Rights

Lawmakers want to ban young people from using social media—but over 50 years of Supreme Court precedent protects their free speech, writes legal historian Doris Morgan Rueda. Courtesy of ROBIN WORRALL/Unsplash.

My best friend’s 13-year-old son recently asked me to friend him on the social media app BeReal.

She had decided to let him download BeReal partially because it lets users post just once per day and has very limited chat features, and only under the condition that they had to be friends. But he was free to choose what and when to post, what to comment, and whom to befriend (including, to my amusement, me). My friend was treating it like a learner’s-permit version of Instagram or Facebook. Her son could drive his social media car, but only with an adult present in the front seat.

Like many parents and caregivers, her aim was to develop a way for her son to safely learn about and prepare for our increasingly virtually connected world, while still respecting his right to speech and self-expression in an age-appropriate manner. This vision of adolescence as a driver’s permit to adult-sized rights regularly emerges in my work as a historian of law and childhood. Throughout histories of childhood and youth, my profession is examining the boundaries of young people’s rights in various contexts, from medical consent to due process rights that have contemporary political implications.

But in some states, the law may soon criminalize these very actions.

In the wake of remote learning’s increased screen time and the rise of anti-LGBTQ legislation, predominately conservative lawmakers have been raising a new round of moral panic over young people’s mental health and their exposure to adult content. Their push for a radical new vision of internet access is rooted in political fears about youth and social media, and threatens decades of free speech protections.

There is a long history of moral panics around youth and the popular technology of their eras. The Victorians worried that bicycles enabled teens and unmarried adults to avoid chaperones, and that they contributed to a growing popularity of bloomers over dresses or skirts. For Cold War parents, comic books symbolized the rise of the violent and crazed juvenile delinquent and sparked a U.S. Senate subcommittee investigation. These panics were less a reaction to reality, but rather, they represented cyclical anxieties of generational segregation and control over young people.

Foundational child protection law is already in place in the United States. In 1998, the Federal Children Online Privacy Protection Act (COPPA) prohibited the collection of online data from online users under the age of 12. In 2013, it was amended to expand its reach. But now, state lawmakers want legislation that would criminalize internet access for millions of Americans.

Blanket bans replicate the very dangers they are designed to prevent: Strict parental controls create a ring of invisibility around domestic abuse, while increasing data collection from all Americans, child or adult.

For adults, this legislation has focused on limiting access to pornography. But more changes in process are targeting young people’s social media usage. In Texas, state representative Jared Patterson filed H.B. No. 896 last December, which would have banned any person under the age of 18 from using social media apps, and allowed parents to request the removal of their children’s social media accounts. Though the bill failed to pass, undeterred conservatives in Utah pushed forward a similar bill, quickly passed and signed into law this March, which prohibits minors from having any social media accounts. It also has created a nearly unenforceable “internet curfew.”

While the Utah and Texas cases represent the most extreme measures in the new efforts to control youth internet access, a bipartisan group of federal lawmakers has also introduced the more seemingly palatable Protecting Kids on Social Media Act, a revamped version of the previously rejected Kids Online Safety Act (KOSA), which aims to censor material considered potentially “harmful.” Yet, as law and technology expert Mike Masnick has written, with no clear definition of “harmful content,” state attorney generals can define the term as it suits them, and use it to target websites they want blocked for ideological reasons. Last year, over 90 LGBTQ+ and human rights groups signed a letter in protest of KOSA.

It’s true that there is content on the internet that poses dangers to minors. The media has featured heartbreaking stories of cyberbullying and online predators. But it’s because of those dangers that nuance in lawmaking is so critical. Blanket bans replicate the very dangers they are designed to prevent: Strict parental controls create a ring of invisibility around domestic abuse, while increasing data collection from all Americans, child or adult.

Likewise, while studies have pointed to social media’s impact on mental health, banning it won’t solve the youth mental health crisis, as the legislation suggests. Social media is just one part of American childhood today, alongside rampant gun violence, anti-LGBTQ+ fascism, and endemic economic inequality.

And then there’s the First Amendment. By seeking to purge children from the internet, conservative lawmakers are denying young people the right to expression, speech, and creativity. Stripping them of their right to speak out on platforms, often about issues that impact them directly, runs counter to decades of precedent for young people.

Young people had their earliest First Amendment victory in Tinker v. Des Moines (1969), when siblings Mary Beth and John Tinker, who had been expelled for their silent protest of the Vietnam War, argued that their rights to free speech did not end at the entrance of their public school. The Supreme Court agreed. Subsequent decisions, Hazelwood v. Kuhlmeier (1988) and Morse v. Frederick (2007), upheld Tinker’s basic ruling, while carving out caveats in favor of school administrators. But until 2021, the Supreme Court had yet to deal with a case regarding youth free speech and the internet.

Then came the memorably named “Cursing Cheerleader” case, Mahanoy Area School District v. B.L. After a student recorded and uploaded a Snapchat story featuring a caption cursing and criticizing her high school, school administrators suspended her from the junior varsity cheerleading team. The case asked the Court if Tinker applied to a student’s social media post. With an 8-1 decision, the Court found that it did. (Justice Clarence Thomas, the sole dissent, argued for a chipping away of Tinker in favor of schools and parents.)

When Utah’s latest social media ban is inevitably challenged in court, the state will need to argue against these Supreme Court rulings that uphold youth First Amendment protections. But it takes time for a case to make its way through the courts. Until then, this law and others like it will deny young people their right to be online, while creating a much more dangerous digital landscape for the very children they allege to protect.

Though the internet isn’t perfect, it can be a space of creativity and intellectual engagement for youth. Ranging from budding craftspeople learning to operate a business, to youth activists working on climate change and LGBTQ rights, young people wield their digital literacy for positive efforts, often using social media in the process. Banning their social media use will merely push them to further hide their online activity, and to speak less freely about the issues they face in digital spaces. It criminalizes their attempts to learn to live in a virtual world and ignores the necessity of the internet for modern life.

It’s better to arm the young people in our lives with digital literacy and open dialogue. Take a page from my friend’s parenting book, give them space to learn, post silly pictures, and teach you a thing or two. And, while we’re at it, encourage them to get outside and ride a bike—no matter the legwear they choose.

Doris Morgan Rueda is a legal historian who studies law, youth, race, and injustice in the American borderlands at the Stanford Center for Law and History at Stanford Law School. Her current project is a history of incarcerated youth and juvenile justice within the Arizona State Industrial Schools.
PRIMARY EDITOR: Caroline Tracey | SECONDARY EDITOR: Jackie Mansky


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