• by Wendy Davis , Yesterday

Nebraska is urging a federal appellate court to lift a block on a state law requiring social platforms to verify users' ages and prohibit anyone under 18 from creating accounts without permission of a parent or guardian.

U.S. District Court Judge John Gerrard blocked enforcement of the state Parental Rights in Social Media Act (LB 383) on First Amendment grounds, writing that the law appeared to be aimed at preventing minors "from accessing speech about certain subject matter."

State Attorney General Michael Hilgers is now arguing to the Eighth Circuit Court of Appeals that this decision should be reversed.

Among other contentions, Hilgers says minors lack a constitutional right to access speech without parental approval.

"The First Amendment does not protect speech with minors to which their parents do not consent," Hilgers argued in papers filed last week. "Neither does it give adults a right to avoid age verification to ensure minors with non-consenting parents cannot simply lie to circumvent their parents’ wishes."

The filing comes in response to a lawsuit by NetChoice, which sought to invalidate the law. The tech group -- which represents large platforms including Google, TikTok, Meta and Snap -- argued in its bid to block enforcement that the Supreme Court in 2011 upheld minors' right to access speech without parental approval.

In that case, the court struck down a California law that restricted the sale of violent video games to minors.

When Gerrard sided with NetChoice, he wrote that the law's age verification and parental consent provisions have "a direct impact on several protected First Amendment activities."

He also noted that the state attorney general testified to lawmakers about a "need to restrict the 'inappropriate material' available to minors online" -- including matters protected by the First Amendment, such as content related to drug use and body dysmorphia.

Hilgers now argues to the Eighth Circuit that this decision should be reversed for several reasons, including that -- according to his reading of prior decisions -- "American jurisprudence has consistently recognized parents’ rights to control what their children read and with whom their children interact."

That interpretation is incorrect, according to Kate Ruane, director of the Center for Democracy & Technology's free expression project.

"Precedent does not support this argument," she tells MediaPost, adding that there are many judicial decisions upholding teens' First Amendment rights to express themselves and to access speech -- except for material considered "obscene as to minors."

For instance, she says, the 2011 Supreme Court ruling regarding violent video games has expansive language regarding minors' free-speech rights.

Justice Antonin Scalia, who authored the opinion in that case, wrote that the government doesn't have a “free-floating power to restrict the ideas to which children may be exposed."

He wrote that minors "are entitled to a significant measure of First Amendment protection," and that the government can only "bar public dissemination of protected materials to them” in "relatively narrow and sell-defined circumstances."

Scalia added that basic free speech principles “do not vary when a new and different medium for communication appears.”

Hilgers also called attention to that case in his appellate papers -- but he quoted from a dissent authored by Justice Clarence Thomas, who wrote: "The historical evidence shows that the founding generation believed parents had absolute authority over their minor children and expected parents to use that authority to direct the proper development of their children."

Aaron Mackey, deputy legal director at the digital rights group Electronic Frontier Foundation, adds that Nebraska's attorney general is obviously hoping to convince the Supreme Court to overturn its 2011 video game ruling.

Nebraska's brief represents a clear attempt "to find favor with justices who agree with Justice Thomas's dissent," Mackey says.

Nebraska also contends that the statute only regulates contracts with minors, arguing that the law merely restricts minors from signing up for accounts and accepting terms of service.

"Regardless of whether NetChoice’s members are selling speech or sandwiches, it is no mystery why the state would restrict their ability to obtain and use personal data of minors, or limit how minors can seek redress for harms, without parental consent," Hilgers argues. "NetChoice’s members do not have a First Amendment right to trap unwitting minors into forfeiting important legal rights."