Put That in Your Algorithm

By John R. Byrne

I think social media is doing a lot of harm to our kids (and probably us adults as well). Sure, it may be the quickest way for people to get critically important information, like injury updates for players on the Miami Hurricanes football team. But the algorithms have a way of sucking people into a never-ending doom scroll.

Kids seem particularly vulnerable to the ills of this aspect of modern technology, and there are plenty of studies linking social-media use to problems like attention difficulties and body-image issues. The state of Florida decided to do something about it. The legislature passed HB3, a law that prohibits children under 14 from creating or maintaining accounts on certain social-media platforms and requires parental consent for 14- and 15-year-olds.

You knew it was only a matter of time before that law was challenged. Enter the Computer & Communications Industry Association and NetChoice. Never heard of either organization before, but, for some reason, I'm imagining a bunch of guys in short-sleeved white button-down shirts and pocket protectors. The organizations challenged HB3 on First Amendment grounds, and a federal district court in Florida concluded that they were likely to succeed and preliminarily enjoined Florida from enforcing the law.

The Eleventh Circuit stayed the injunction pending appeal. And, this past Wednesday, the court reversed the injunction as to the plaintiffs' as-applied challenge and vacated it as to their facial challenge. The panel consisted of Judges Newsom, Luck, and Tjoflat. Newsom wrote the opinion and, in a very Newsom-esque move, also wrote a separate concurrence.

The two big takeaways?

1. The court held that the law was content neutral, which, obviously, is a pretty important factor in First Amendment jurisprudence. Specifically, the law applied to platforms based on their technological features rather than the content of the speech appearing on them. For example, the law targeted platforms that use algorithms to select content for users and employ potentially addictive features, like infinite scrolling, push notifications, and autoplay. The law doesn't prohibit those features outright, but their use helps determine whether a platform is subject to the age restrictions.

2. The court held that the law likely survived the applicable level of scrutiny (here, "intermediate"). That's because Florida has an important interest in protecting children from social-media addiction and the statute is sufficiently tailored to that interest (heartily agree).

Newsom's concurrence raised an interesting question: Could the Eleventh Circuit have (at least partially) cut the Gordian knot by refusing to entertain an as-applied challenge in the first place? Newsom noted that, in West Virginia v. B.P.J. ex rel. Jackson, 146 S. Ct. 2356 (2026), the Supreme Court stated in a footnote that "[a]s-applied challenges are not entertained when courts apply intermediate scrutiny or rational basis review."

That sounds pretty categorical. But, as Newsom explained, there were reasons not blindly apply that language to this case. For one thing, B.P.J. was an equal-protection case, not a First Amendment case. For another, courts have long entertained as-applied First Amendment challenges under intermediate scrutiny. And such a ruling would mean that, in a large class of First Amendment cases, challengers would be left with only facial challenges, which are disfavored in constitutional litigation (and usually losing arguments).

As Newsom observed, that combination could result in "a lot less protection for traditionally safeguarded speech." He wasn't prepared to go that far without a clearer signal from the Supreme Court.

Opinion here. 

All in all, I think the Eleventh Circuit nailed this one (and not just because I have 14-year-old twin daughters).