My entire life I’ve seen a similar pattern. Older generations reflect on the deficiencies of “kids these days,” and they find something new to blame. The latest technology and new forms of entertainment are always bewitching our children. In my time, I’ve witnessed several distinct public panics over television, video games and music. They’ve all been overblown.
This time, however, I’m persuaded — not that smartphones are the sole cause of increasing mental health problems in American kids, but rather that they’re a prime mover in teen mental health in a way that television, games and music are not. No one has done more to convince me than Jonathan Haidt. He’s been writing about the dangers of smartphones and social media for years, and his latest Atlantic story masterfully marshals the evidence for smartphones’ negative influence on teenage life.
At the same time, however, I’m wary of government intervention to suppress social media or smartphone access for children. The people best positioned to respond to their children’s online life are parents, not regulators, and it is parents who should take the lead in responding to smartphones. Otherwise, we risk a legal remedy that undermines essential constitutional doctrines that protect both children and adults.
I don’t want to minimize the case against phones. Haidt’s thesis is sobering:
Once young people began carrying the entire internet in their pockets, available to them day and night, it altered their daily experiences and developmental pathways across the board. Friendship, dating, sexuality, exercise, sleep, academics, politics, family dynamics, identity — all were affected.
The consequences, Haidt argues, have been dire. Children — especially teenagers — are suffering from greater rates of anxiety and depression, and suicide rates have gone up; and they spend less time hanging out with friends, while loneliness and friendlessness are surging.
Neither smartphones nor social media are solely responsible for declining teen mental health. The rise of smartphones correlates with a transformation of parenting strategies, away from permitting free play and in favor of highly managed schedules and copious amounts of organized sports and other activities. The rise of smartphones also correlates with the fraying of our social fabric. Even there, however, the phones have their roles to play. They provide a cheap substitute for in-person interaction, and the constant stream of news can heighten our anxiety.
I’m so convinced that smartphones have a significant negative effect on children that I’m now much more interested in the debate over remedies. What should be done?
That question took on added urgency Tuesday, when Ron DeSantis, the governor of Florida, signed a bill banning children under 14 from having social media accounts and requiring children under 16 to have parental permission before opening an account. The Florida social media bill is one of the strictest in the country, but Florida is hardly the only state that is trying to regulate internet access by minors. Utah passed its own law; so have Ohio and Arkansas. California passed a bill mandating increased privacy protections for children using the internet.
So is this — at long last — an example of the government actually responding to a social problem with a productive solution? New information has helped us understand the dangers of a commercial product, and now the public sector is reacting with regulation and limitation. What’s not to like?
Quite a bit, actually. Federal courts have blocked enforcement of the laws in Ohio, Arkansas and California. Utah’s law faces a legal challenge and Florida’s new law will undoubtedly face its day in court as well. The reason is simple: When you regulate access to social media, you’re regulating access to speech, and the First Amendment binds the government to protect the free-speech rights of children as well as adults.
In a 2011 case, Brown v. Entertainment Merchants Association, the Supreme Court struck down a California law banning the sale of violent video games to minors. The 7-to-2 decision featured three Democratic appointees joining with four Republican appointees. Justice Antonin Scalia, writing for the majority, reaffirmed that “minors are entitled to a significant measure of First Amendment protection, and only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to them.”
The state certainly has power to protect children from harm — as laws restricting children’s’ access to alcohol and tobacco attest — but that power “does not include a free-floating power to restrict the ideas to which children may be exposed,” the majority opinion said. Consequently, as the court has repeatedly observed, “Speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them.”
Lawmakers and parents may find this doctrine frustrating, but there is a genuine method to the free-speech madness, even for children. In a free-speech case from 1982, Island Trees School District v. Pico, Justice William Brennan cast doubt on a public school district’s effort to remove “improper” books from library shelves and wrote powerfully in support of student free speech and students’ access to ideas. “Just as access to ideas makes it possible for citizens generally to exercise their rights of free speech and press in a meaningful manner,” Brennan argued, “such access prepares students for active and effective participation in the pluralistic, often contentious society in which they will soon be adult members.”
Justice Brennan is exactly right. We can’t shelter children from debate and dialogue and then expect them to emerge in college as grown-ups, ready for liberal democracy. Raising citizens in a flourishing republic is a process, one that isn’t susceptible to one-size-fits all bans on speech and expression, even if that speech or expression poses social and emotional challenges for today’s teens.
Compounding the problem, social media bans are almost always rooted at least in part in the content on the platforms. It’s the likes, comments, fashions, and trends that cause people to obsess over social media. Yet content discrimination is uniquely disfavored in First Amendment law. As the Supreme Court has repeatedly explained, one of the most basic First Amendment principles is that “as a general matter, the government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”
For content discrimination to be lawful, it has to pass the most difficult of legal tests, a test called “strict scrutiny.” This means that the law is only constitutional if it advances a “compelling government interest and is narrowly drawn to serve that interest.” While one can certainly agree that protecting the mental health of young people is a compelling interest, it is much more difficult to argue that sweeping bans that cut off children from gaining access to a vast amount of public debate and information are “narrowly drawn.”
Finally, attempting to restrict minors’ access to social media can implicate and limit adult speech. Age verification measures would require both adult and child users of social media platforms to reveal personally identifying information as a precondition for fully participating in the American marketplace of ideas.
It’s for these reasons (and others) that federal district judges in California, Arkansas and Ohio have blocked enforcement of each state’s social media law, and it’s for these reasons that the laws in Utah and Florida rightly face an uphill legal climb.
The government isn’t entirely powerless in the face of online harms. I think it is entirely proper to attempt to age-limit online access to pornography. The Supreme Court has permitted state and local governments to use zoning laws to push porn shops into specific, designated areas of the community, and “zoning” online porn for adults only should be entirely proper as well. The Supreme Court hasn’t permitted age-gating pornography yet, but its prior objections were rooted in part in the technical challenges to age verification. With better technology comes better capability to reasonably and easily distinguish between children and adults.
The distinction between social media and pornography should be obvious. There is a difference between denying access to content to minors that they possess no right to see or produce, and to denying access to content that they have a right to both see and produce.
It is also entirely proper to ban smartphones in schools. The court has long held that the First Amendment rights of students should be construed “in light of the special characteristics of the school environment.” And it’s highly likely that courts would uphold phone bans as a means of preventing proven distractions during instruction.
But the primary responsibility for policing kids’ access to phones should rest with parents, not with the state. Not every social problem has a governmental solution, and the more that the problem is rooted in the inner life of children, the less qualified the government is to address it.
And don’t think that a parent-centered approach to dealing with the challenge of online generation is inherently inadequate. As we’ve seen throughout American history, parenting cultures can change substantially, based on both information and experience. Public intellectuals like Jonathan Haidt perform an immense public service by informing the public, and just as parents adjust children’s diets or alter discipline habits in response to new information, they can change the culture around cellphones.
In fact, there are signs this is already happening. I have three children — aged 25, 23 and 16 — and I can personally attest to the changing culture in my little corner of the world. I gave my oldest two kids iPhones when they were 12 and 11, and granted access to Facebook and Instagram with little thought to the consequences. Most of my peers did the same.
Quickly enough, we learned our mistake. When my youngest entered middle school, I noticed that parents were far more cautious. We talked about phone use, and we tried to some extent to adopt an informal, collaborative approach so that no member of the friend group was alone and isolated while all her peers were texting on their phones and posting online. It didn’t work perfectly, and my daughter spent a few unpleasant months as the last friend without a phone at age 15, but awareness of the risks was infinitely higher, and even when children did receive phones, the controls on use were much tighter.
One of the core responsibilities of the American government at all levels is to protect the liberty of its citizens, especially those liberties enumerated in the Bill of Rights. At the same time, it is the moral obligation of the American people to exercise those liberties responsibly. Haidt and the countless researchers who’ve exposed the risks of online life are performing an invaluable role. They’re giving parents the information we need to be responsible. But the First Amendment rights of adults and children are too precious to suppress, especially when parents are best positioned to protect children from harm online.
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