First Amendment Challenges to Regulation of Social Media
Congressional research reportAug 24, 2026
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First Amendment Challenges to Regulation of
Social Media
August 24, 2026
Congressional Research Service
https://crsreports.congress.gov
R49308
SUMMARY
First Amendment Challenges to Regulation of
Social Media
Online platforms such as social media sites allow users to communicate with billions around the
world. The platforms are significant forums for speech, enabling users to share their own content
as well as receive and interact with others’ content. Over the past decade, federal and state
policymakers have expressed concerns about a variety of issues related to online platforms,
including the spread of objectionable content, the platforms’ ability to control or restrict the flow
of speech, and potential harms to minors.
R49308
August 24, 2026
Peter J. Benson
Legislative Attorney
Valerie C. Brannon
Legislative Attorney
For a copy of the full report,
Several Members of the 119th Congress have introduced bills to regulate online platforms. In
please call 7-5700 or visit
2025, Congress enacted the TAKE IT DOWN Act, Pub. L. No. 119-12, 139 Stat. 55, requiring
www.crs.gov.
covered platforms to remove nonconsensual intimate images at the request of the depicted
individual. States have enacted more laws specifically regulating online platforms. Many of these state laws have been
challenged under the First Amendment’s Free Speech Clause. The Supreme Court has recognized that adults and minors have
constitutionally protected rights to share and receive speech online. E.g., Packingham v. North Carolina, 582 U.S. 98, 104–
05 (2017). In addition, the First Amendment can protect platforms’ expressive editorial judgments about what speech to host
and how to present it. Moody v. NetChoice, LLC, 603 U.S. 707, 728 (2024). If a law restricts any of these protected
expressive activities, it could be subject to legal challenge under the First Amendment. First Amendment protections are not
absolute. In most constitutional challenges, the government will have the opportunity to argue that its regulation is justified.
To determine whether a law complies with the First Amendment, courts apply different legal standards or tests—sometimes
referred to as levels of scrutiny—depending on the type of speech being regulated and how the law affects speech.
This report discusses how courts have applied these First Amendment principles to state laws that fall into four categories:
laws that restrict minors’ access to online platforms; laws that target particular content published by platforms; laws that
target platform design; and laws that require platforms to disclose information. The report also discusses how courts have
evaluated state laws’ definitions of the covered platforms, and how that scope of coverage affects the level of constitutional
scrutiny. As a general principle, if a law targets particular speech or speakers because of their ideas or message, it will be
subject to strict constitutional scrutiny and presumptively unconstitutional. Reed v. Town of Gilbert, 576 U.S. 155, 163
(2015). Therefore, courts have said the First Amendment likely bars laws that regulate only some platforms based on the
content they host, or laws that require platforms to remove certain content because of its subject matter or viewpoint. Laws
regulating platform design features may be subject to a lower level of constitutional scrutiny if they are content neutral,
though courts are still likely to evaluate the government’s justification and the extent of the burden on protected speech. As
laws compelling speech, disclosure requirements can also be subject to strict constitutional scrutiny. National Institute of
Family & Life Advocates v. Becerra, 585 U.S. 755, 766 (2018). At the same time, the Supreme Court has recognized that
commercial disclosure requirements are, by their nature, less speech-restrictive than laws banning speech on a given topic or
viewpoint, because they require the regulated entity to provide more information instead of prohibiting that entity from
speaking. E.g., Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626, 651 (1985).
Accordingly, courts have upheld transparency requirements compelling factual and uncontroversial terms-of-service
disclosures under a less demanding standard of scrutiny.
The jurisprudence on online platform regulation is still developing. A number of legal challenges to online platform
regulation are pending as of the date of this report, and governments continue to adopt and amend their laws. Litigants
ranging from state governments to platforms and their users have argued over which laws restrict expression, what levels of
scrutiny a court should apply to those that do, and whether states have identified sufficient interests and proffered sufficient
evidence to justify their laws. Nonetheless, this developing jurisprudence holds lessons for Congress as it considers whether
and how to regulate online platforms. In addition, this litigation has highlighted questions related to federalism and
Congress’s ability to preempt state laws, which may also be relevant as Congress considers platform regulations.
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First Amendment Challenges to Regulation of Social Media
Contents
Foundational First Amendment Principles ...................................................................................... 2
Protected Expression ................................................................................................................. 2
Laws Targeting Expression or Content ..................................................................................... 3
Facial Challenges ...................................................................................................................... 4
Laws Defining Scope of Coverage .................................................................................................. 5
Considerations for Congress ..................................................................................................... 8
Laws Restricting Minors’ Access to Platforms.............................................................................. 10
First Amendment Background: Age Verification and Laws Protecting Minors .......................11
Judicial Decisions Addressing Laws That Restrict Minors’ Social Media Access .................. 13
Considerations for Congress ................................................................................................... 16
Laws Targeting Particular Content or Harms ................................................................................ 17
Laws Targeting Particular Content .......................................................................................... 17
Laws Targeting Advertisements and Commercial Speech ................................................ 20
Laws Targeting Categories of Unprotected Speech .......................................................... 22
Laws Targeting Particular Harms ............................................................................................ 23
Considerations for Congress ................................................................................................... 25
Laws Targeting Platform Design ................................................................................................... 26
Content Moderation ................................................................................................................ 27
Addictive Features .................................................................................................................. 28
Privacy and Related Protections .............................................................................................. 32
Considerations for Congress ................................................................................................... 36
Laws Requiring Disclosures .......................................................................................................... 37
First Amendment Background: Compelled Speech and Commercial Disclosure
Requirements ....................................................................................................................... 38
Laws Requiring Purely Factual and Uncontroversial Commercial Disclosures ..................... 40
Laws Requiring Other Types of Disclosures ........................................................................... 42
Considerations for Congress ................................................................................................... 45
Select Additional Arguments Raised Against State Social Media Laws ....................................... 46
Preemption .............................................................................................................................. 47
Express Preemption .......................................................................................................... 47
Implied Preemption........................................................................................................... 48
Section 230 of the Communications Act of 1934 ............................................................. 48
Dormant Commerce Clause .................................................................................................... 50
Considerations for Congress ................................................................................................... 51
Section 230 ....................................................................................................................... 51
Dormant Commerce Clause .............................................................................................. 51
Contacts
Author Information........................................................................................................................ 52
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First Amendment Challenges to Regulation of Social Media
I
n 2024, the Supreme Court observed that “[t]he questions of whether, when, and how to
regulate online entities, and in particular the social-media giants, are understandably on the
front-burner of many legislatures and agencies.”1 In 2024 and 2025, Congress enacted laws
addressing the foreign ownership of TikTok and other “foreign adversary controlled
applications”2 and requiring that certain online platforms implement a notice-and-removal
process for intimate images that were published without consent.3 In the 119th Congress, the
Senate has passed the Advancing Digital Support (ADS) for Mental Health Services Act, which
would require certain platforms to report information about “public service advertisements” on
their websites,4 as well as the Children and Teens’ Online Privacy Protection Act, which would
govern platforms’ use and disclosure of minors’ personal information.5 The House has passed the
Kids Internet and Digital Safety Act (KIDS) Act, a bill consolidating a variety of legislative
proposals aimed at protecting minors online.6 Some Members continue to introduce new bills and
propose additional platform regulations.7
State legislatures have arguably enacted an even wider variety of laws that regulate online
platforms.8 Among other regulations, states have enacted laws that regulate who can use certain
platforms,9 what content platforms can display,10 how platforms should be designed,11 and what
information platforms must disclose to users or the public.12
Many of these state laws have been challenged in court by parties arguing that the laws violate
the First Amendment’s Free Speech Clause. As a general matter, the Supreme Court has
recognized that social media platforms are important forums for users to engage in
constitutionally protected speech.13 As challenges to state laws regulating online platforms move
through the court system, a body of First Amendment case law is developing. The Supreme Court
has heard two recent challenges to state regulations of online platforms—one addressing content
1 Moody v. NetChoice, LLC, 603 U.S. 707, 716 (2024).
2 Protecting Americans from Foreign Adversary Controlled Applications Act, Pub. L. No. 118–50, div. H, 138 Stat.
955 (2024). For an analysis of litigation about the constitutionality of the Protecting Americans from Foreign
Adversary Controlled Applications Act, see CRS Legal Sidebar LSB11261, TikTok Inc. v. Garland: Supreme Court
Rejects Challenge to TikTok Divestiture Law, by Peter J. Benson and Valerie C. Brannon (2025).
3 Tools to Address Known Exploitation by Immobilizing Technological Deepfakes on Websites and Networks (TAKE
IT DOWN) Act, Pub. L. No. 119-12, 139 Stat. 55 (2025). For an analysis of the TAKE IT DOWN Act, see CRS Legal
Sidebar LSB11314, The TAKE IT DOWN Act: A Federal Law Prohibiting the Nonconsensual Publication of Intimate
Images, by Victoria L. Killion (2025).
4 S. 414, 119th Cong. (2025).
5 S. 836, 119th Cong. (2025).
6 H.R. 7757, 119th Cong. (2026); CRS Legal Sidebar LSB11465, The House Passes the KIDS Act, by Peter J. Benson
and Chris D. Linebaugh.
7 E.g., Kids Off Social Media Act, S. 278, 119th Cong. (2026); Kids Off Social Media Act, H.R. 7433, 119th Cong.
(2026); App Store Accountability Act, S. 1586, 119th Cong. (2025); App Store Accountability Act, H.R. 3149, 119th
Cong. (2025); Algorithm Accountability Act, S. 3193, 119th Cong. (2025).
8 This report refers to these laws using the past tense. Litigation challenging many of the laws is pending and state
legislatures have amended some of their laws in response to the evolving landscape. This report uses the past tense to
indicate that it is referring to the version of the law that, as relevant in the context of the specific discussion, was in
effect at the time (1) the report was published, or (2) the law was considered by a court.
9 See infra “Laws Restricting Minors’ Access to Platforms.”
10 See infra “Laws Targeting Particular Content or Harms.”
11 See infra “Laws Targeting Platform Design.”
12 See infra “Laws Requiring Disclosures.”
13 Packingham v. North Carolina, 582 U.S. 98, 104 (2017). Packingham involved a state law restricting registered sex
offenders’ ability to access websites, regulating users rather than the platforms themselves. Id. at 101.
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moderation restrictions,14 and another addressing an age verification requirement.15 Federal and
state trial and appellate courts have decided many more.
This report analyzes the growing body of judicial decisions that apply the First Amendment to
laws regulating online platforms. The report is organized by considering different aspects of state
laws regulating social media and then discussing how courts have applied the First Amendment to
each type of regulation. The report begins with an overview of cross-cutting First Amendment
concepts that are relevant to a variety of types of free speech challenges. Later sections of the
report discuss more specific First Amendment jurisprudence relevant to specific types of laws
regulating online platforms and contain additional background sections as needed. Turning to
specific provisions in state laws, the report first considers the definitions that set the scope of
those laws. It then discusses how courts have addressed challenges to four categories of state
laws: laws that restrict minors’ access to online platforms; laws that target particular content
published by platforms; laws that target platform design; and laws that require platforms to
disclose information. The report closes with an analysis of lawsuits alleging that state regulations
of online platforms are preempted by federal law or violate the dormant Commerce Clause. In
each section, the report explores related considerations for Congress.
Foundational First Amendment Principles
Protected Expression
The First Amendment protects both “pure speech”16 and “inherently expressive” conduct.17 While
the First Amendment extends to expressive conduct such as flag-burning,18 the Supreme Court
has cautioned that conduct cannot be “labeled ‘speech’ whenever the person engaging in the
conduct intends thereby to express an idea.”19 Instead, the question is whether the allegedly
expressive “activity was sufficiently imbued with elements of communication.”20 For instance,
the Court has held that the First Amendment protects video games because they “communicate
ideas—and even social messages—through many familiar literary devices (such as characters,
dialogue, plot, and music) and through features distinctive to the medium (such as the player’s
interaction with the virtual world).”21 In another case, the Court held that a website designer was
engaged in speech when she created custom websites containing “modes of expression” that
would “communicate ideas.”22 The Court has also said that “the creation and dissemination of
information are speech,”23 leading lower courts to conclude that computer code can be protected
if it “involves the expression or communication of ideas in a way that implicates the First
Amendment.”24
14 Moody v. NetChoice, LLC, 603 U.S. 707, 717 (2024).
15 Free Speech Coal., Inc. v. Paxton, 606 U.S. 461, 465 (2025).
16 303 Creative LLC v. Elenis, 600 U.S. 570, 587 (2023).
17 Rumsfeld v. F. for Acad. & Institutional Rts., Inc., 547 U.S. 47, 66 (2006).
18 Texas v. Johnson, 491 U.S. 397, 399 (1989).
19 United States v. O’Brien, 391 U.S. 367, 376 (1968).
20 Spence v. Washington, 418 U.S. 405, 409 (1974).
21 Brown v. Ent. Merchs. Ass’n, 564 U.S. 786, 790 (2011).
22 Elenis, 600 U.S. at 587.
23 Sorrell v. IMS Health Inc., 564 U.S. 552, 570 (2011).
24 Def. Distributed v. Att’y Gen., 167 F.4th 65, 82 (3d Cir. 2026); see also, e.g., Universal City Studios v. Corley, 273
(continued...)
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The Supreme Court has specifically recognized social media as an important forum for sharing
and receiving protected speech.25 Thus, if a law limits a person’s ability to use social media to
speak or listen to others’ speech, that person might raise a First Amendment challenge to the
law.26 Though First Amendment rights are not absolute, both adults and children have some
constitutionally protected interests in online speech.27
In addition, online platforms themselves might engage in constitutionally protected expression,
not only when they create their websites or write posts, but also when they choose to host or
remove others’ speech. In a 2024 case, Moody v. NetChoice, LLC, the Supreme Court considered
trade groups’ challenges to Florida and Texas laws regulating platforms’ content moderation
activity.28 The Court confirmed the general principle that providing a forum for others’ views can
itself qualify as expressive activity in some circumstances.29 Specifically, the Court held that
online “platforms’ choices about the views they will, and will not, convey” are expressive.30
Platforms could therefore challenge laws that interfere with expressive editorial judgments—
although again, any First Amendment protections are not absolute and are limited to expressive
choices.31
Laws Targeting Expression or Content
A law can trigger First Amendment scrutiny if it targets expressive activity by restricting or
compelling speech, or if the law primarily regulates non-expressive conduct but incidentally
burdens speech.32 Different types of laws receive different levels of constitutional scrutiny. When
evaluating a First Amendment claim, courts decide the appropriate level of scrutiny by looking to
the type of speech being regulated and how the government regulation affects that speech. 33
One important inquiry in determining the appropriate level of scrutiny is whether a law is content
based or content neutral. As a general principle, the Supreme Court has said the “government has
no power to restrict expression because of its message, its ideas, its subject matter, or its
content.”34 A law is considered content based if it targets speech because of its “‘communicative
F.3d 429, 454 (2d Cir. 2001) (examining a program’s capacity “for conveying information to a human being”); Green
v. U.S. Dep’t of Just., 54 F.4th 738, 745 (D.C. Cir. 2022) (agreeing with Corley).
25 Packingham v. North Carolina, 582 U.S. 98, 104–05 (2017).
26 E.g., id. at 107 (holding a state violated the First Amendment by barring registered sex offenders from social media).
But cf., e.g., NetChoice, LLC v. Reyes, 748 F. Supp. 3d 1105, 1132–33 (D. Utah 2024) (holding that individual
plaintiffs did not have standing to challenge a law regulating “social media companies—not social media users”).
27
See generally, e.g., CRS Report R47049, Children and the Internet: Legal Considerations in Restricting Access to
Content, by Eric N. Holmes (2022).
28 Moody v. NetChoice, LLC, 603 U.S. 707, 722 (2024).
29 Id. at 728. At the same time, the Court said “ordering a party to provide a forum for someone else’s views implicates
the First Amendment . . . . only if . . . the regulated party is engaged in its own expressive activity, which the mandated
access would alter or disrupt.” Id. The Court distinguished prior cases in which it had allowed compelled access
because it “did not affect the complaining party’s own expression.” Id. at 730.
30 Id. at 737–38.
31 See id. at 744.
32 United States v. O’Brien, 391 U.S. 367, 376–77 (1968); see also, e.g., TikTok Inc. v. Garland, 604 U.S. 56, 67
(2025) (describing when a law triggers “First Amendment scrutiny”); Arcara v. Cloud Books, Inc., 478 U.S. 697, 706–
07 (1986) (“[W]e have subjected such restrictions [civil and criminal sanctions] to scrutiny only where it was conduct
with a significant expressive element that drew the legal remedy in the first place . . . or where a statute based on a
nonexpressive activity has the inevitable effect of singling out those engaged in expressive activity . . . .”).
33 CRS Report R47986, Freedom of Speech: An Overview, by Victoria L. Killion (2024).
34 Brown v. Ent. Merchs. Ass’n, 564 U.S. 786, 790–91 (2011) (quoting Ashcroft v. ACLU, 535 U.S. 564, 573 (2002)).
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content’—that is, if it ‘applies to particular speech because of the topic discussed or the idea or
message expressed.’”35 At the same time, the Court has said that “absent a content-based purpose
or justification,” a law will not be content based if it looks to the speech’s content “only in service
of drawing . . . lines” that are neutral as to speech’s content.36 Further, the Court has historically
recognized that the government can restrict certain limited categories of so-called “unprotected”
speech, including obscenity, defamation, and fraud.37 In addition, and as discussed in more detail
later in the report, commercial speech generally receives “a lesser protection . . . than . . . other
constitutionally guaranteed expression.”38
In most contexts, though, if a court concludes the government is regulating speech because of its
content, the court will apply a legal standard known as strict scrutiny.39 Under strict scrutiny,
content-based laws “are presumptively unconstitutional and may be justified only if the
government proves that they are narrowly tailored to serve compelling state interests.”40 This
heightened standard can be triggered not only if a law expressly targets specific content, but also
if it is applied based on the content of targeted speech.41 Further, as discussed in detail in a later
section of this report addressing disclosure requirements, the Supreme Court has said that a law
that compels “individuals to speak a particular message” is content based and will likely trigger
strict scrutiny.42
A content-neutral speech regulation might be subject to a lower standard known as intermediate
scrutiny, which requires the government to demonstrate “an important or substantial . . . interest
. . . unrelated to the suppression of free expression” and to show the “restriction on alleged First
Amendment freedoms is no greater than is essential to the furtherance of that interest.”43 Under
intermediate scrutiny, in contrast to strict scrutiny, a regulation “need not be the least speechrestrictive means of advancing the Government’s interests.”44 Instead, the government satisfies its
burden if it does not “burden substantially more speech than is necessary.”45
Facial Challenges
Litigants may challenge a law either on its face or as applied—that is, they can choose to argue
the law as a whole violates the First Amendment or can argue a law is unconstitutional as applied
35 City of Austin v. Reagan Nat’l Advert. of Aus., LLC, 596 U.S. 61, 69 (2022) (quoting Reed v. Town of Gilbert, 576
U.S. 155, 163 (2015)).
36 Id. In that case, the Court held a city ordinance regulating “off-premises” signs—signs advertising “things that are
not located on the same premises as the sign, as well as signs that direct people to offsite locations”—was not content
based. Id. at 64. Although the ordinance “require[d] reading a billboard to determine whether” the law applied, it
nonetheless did not “single out any topic or subject matter for differential treatment.” Id. at 71. The law treated signs
“differently based solely on” location. Id.
37 CRS In Focus IF11072, The First Amendment: Categories of Speech, by Victoria L. Killion (2024). For further
discussion of this issue, see infra “Laws Targeting Categories of Unprotected Speech.”
38 Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557, 563 (1980); infra “Laws Targeting
Advertisements and Commercial Speech”; “First Amendment Background: Compelled Speech.”
39 Reed, 576 U.S. at 163–64.
40 Id. at 163.
41 E.g., 303 Creative LLC v. Elenis, 600 U.S. 570, 592 (2023); Holder v. Humanitarian L. Project, 561 U.S. 1, 27
(2010).
42 Nat’l Inst. of Family & Life Advocs. v. Becerra, 585 U.S. 755, 766 (2018); infra “Laws Requiring Disclosures.”
43 Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 662 (1994) (quoting United States v. O’Brien, 391 U.S. 367, 377
(1968)).
44 Id.
45 Id. (quoting Ward v. Rock Against Racism, 491 U.S. 781, 799 (1989)).
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to specific expression.46 Courts have set a higher standard for plaintiffs to prevail in facial
challenges, given that the outcome is invalidating a law in its entirety rather than preventing the
government from enforcing the law in a specific case.47 In other constitutional contexts, facial
challengers usually must show that a law is invalid in all its applications.48 In the First
Amendment context, however, the Supreme Court has recognized a special kind of facial
challenge known as overbreadth. A party can win an overbreadth challenge by showing “a
substantial number of [the law’s] applications are unconstitutional, judged in relation to the
statute’s plainly legitimate sweep.”49 The overbreadth doctrine recognizes “that the very existence
of some broadly written statutes may have such a deterrent effect on free expression that they
should be subject to challenge even by a party whose own conduct may be unprotected.”50
In Moody, the Supreme Court case considering the constitutionality of Florida and Texas laws
regulating online content moderation, the Court said the trade groups’ choice to bring facial
challenges came “at a cost.”51 To evaluate the claims, courts had “to assess the state laws’ scope”
and explore their “full range of applications—the constitutionally impermissible and permissible
both.”52 The Supreme Court concluded that it did not have enough information to assess the facial
claims, given the “variegated and complex” nature of the online world and the “ever-growing
number” of covered platforms that “might (or might not) have to change because of” the state
laws’ requirements.53 The Court expected that even as to a single platform, different aspects of its
service might be treated differently for First Amendment purposes.54 For instance, the Court said
that Facebook’s curated News Feed might create “an expressive product,” while transmitting
direct messages might not.55 To evaluate a facial challenge to those state laws, a court would need
to develop a record allowing it to evaluate how much of the law regulated expressive activity,
relative to unprotected activity, and how the law affected that protected expression.56
Laws Defining Scope of Coverage
Some First Amendment challenges raise foundational issues that could jeopardize laws in their
entirety. In particular, some plaintiffs have argued that state laws regulating online platforms are
facially invalid because the definitions that determine the laws’ scope are content based:
specifically, the plaintiffs allege the laws target certain platforms based on the content of their
speech.57 Stated another way, these plaintiffs argue that regardless of whether the law’s
46 Killion, CRS Report R47986, Freedom of Speech: An Overview, supra note 33.
47 See, e.g., Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 450 (2008).
48 Id. at 449.
49 Moody v. NetChoice, LLC, 603 U.S. 707, 723 (2024) (alteration in original) (quoting Ams. for Prosperity Found. v.
Bonta, 594 U.S. 595, 615 (2021)).
50 Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 798 (1984).
51 Moody, 603 U.S. at 723.
52 Id. at 724, 726.
53 Id. at 725–26.
54 Id.
55 Id.
56 Id. at 726.
57 E.g., NetChoice v. Jones, 822 F. Supp. 3d 656, 672–73 (E.D. Va. 2026), appeal docketed, No. 26-1252 (4th Cir. Mar.
6, 2026). In other cases, courts have considered these legal claims regarding coverage definitions in an as-applied
context, rendering it unnecessary to consider the facial challenge. E.g., NetChoice v. Murrill, 812 F. Supp. 3d 594, 657
(M.D. La. 2025). Considering a different type of challenge to the law’s coverage definitions, two federal appeals courts
rejected claims that definitions targeting the largest platforms based on their size triggered heightened constitutional
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requirements are themselves content based, the definitions alone render the entire law content
based and require courts to apply strict scrutiny.58
Existing case law is not clear on whether a definition is content based solely because it targets
social media sites. Thus far, the appeals courts to consider the issue have reached different
conclusions than some trial courts, although at least one of the different outcomes may be due to
differences in the challenged state laws.
A few trial courts have said that when a law targets platforms because they host social
interactions, that renders the law content based and triggers strict scrutiny.59 One trial court said a
Utah law’s coverage definition was content based because it had the effect of “divid[ing] the
universe of internet platforms into social media services, defined as websites or applications that
‘allow users to interact socially with each other,’ and other internet platforms, such as platforms
for ‘news, sports, commerce, [and] online video games.’”60 Another trial court said a Virginia law
that excluded sites hosting “content preselected by the provider” favored “provider-selected
speech over user-generated speech” and reflected a content preference in that way.61
Two federal appeals courts have reached different conclusions. In 2025, the Eleventh Circuit62
concluded a trade group was unlikely to show that a Florida law targeted sites based on their
content.63 The Florida law defined social media platform similarly to the Utah law that a trial
court concluded was content based.64 The Eleventh Circuit, however, held the Florida law was
content neutral and subject to intermediate scrutiny: “[n]either its definition of ‘social media
platform’ nor of ‘addictive features’ makes any reference to the type of content involved.”65
Instead, the court said the law “defines social media platforms by reference to a form of
expression, not a subject matter.”66
scrutiny. Netchoice, L.L.C. v. Paxton, 49 F.4th 439, 482 (5th Cir. 2022), vacated and remanded sub nom., Moody v.
NetChoice, LLC, 603 U.S. 707 (2024); NetChoice, LLC v. Att’y Gen., 34 F.4th 1196, 1224–26 (11th Cir. 2022)
vacated and remanded sub nom., Moody, 603 U.S. at 707. Both opinions were vacated on other grounds by the
Supreme Court. Moody, 603 U.S. at 717.
58 E.g., Jones, 822 F. Supp. 3d at 671; Murrill, 812 F. Supp. 3d at 644–45. This section of the report discusses court
decisions addressing whether the definitions triggered strict scrutiny; later sections discuss how courts ultimately
applied the relevant constitutional standard to the laws at issue.
59 Murrill, 812 F. Supp. 3d at 645; NetChoice, LLC v. Yost, 778 F. Supp. 3d 923, 953 (S.D. Ohio 2025), rev’d and
remanded on other grounds, 180 F.4th 268 (6th Cir. 2026); NetChoice, LLC v. Reyes, 748 F. Supp. 3d 1105, 1122 (D.
Utah 2024). The Ohio opinion was reversed on appeal, but two of the appeals court judges agreed with the trial court’s
conclusion that the coverage definition made the law content based and triggered strict scrutiny. Yost, 180 F.4th at 288
(concluding the definition is content based both because it “disfavors subject matter that appeals to Children” and
because it “favors news and current events subject matter”); id. at 320 (Ritz, J., dissenting) (agreeing with this aspect of
the lead opinion).
60 Reyes, 748 F. Supp. 3d at 1122 (quoting NetChoice, LLC v. Fitch, 738 F. Supp. 3d 753, 771 (S.D. Miss. 2024)). This
Utah law contained exemptions for certain services such as email or cloud storage but did not expressly exempt
platforms hosting news or other content. Id. at 1113–14.
61 Jones, 822 F. Supp. 3d at 673.
62 For simplicity, references in this report to a particular circuit (e.g., the Eleventh Circuit) refer to the U.S. Court of
Appeals for that circuit (e.g., the U.S. Court of Appeals for the Eleventh Circuit).
63 Comput. & Commc’ns Indus. Ass’n v. Uthmeier, No. 25-11881, 2025 WL 3458571, at *4 (11th Cir. Nov. 25, 2025).
64 Compare FLA. STAT. § 501.1736(1)(e) (2025) (defining a platform with certain criteria, including allowing users to
upload or view others’ content, using algorithms to deliver content, and using certain “addictive features”), with UTAH
CODE ANN. § 13-71-101(14)(a) (West 2025) (defining a platform with certain criteria, including displaying content that
is primarily generated by users, connecting account holders to allow users to interact socially, and making available
lists of connected account holders).
65 Comput. & Commc’ns Indus. Ass’n, 2025 WL 3458571, at *4 (quoting FLA. STAT. § 501.1736(1)(e)).
66 Id.
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In another 2025 ruling, the Ninth Circuit partially rejected a preliminary constitutional challenge
to California’s Protecting Our Kids from Social Media Addiction Act.67 That law defined covered
sites as “‘including, but not limited to, a social media platform’ that personalizes feeds based on
information provided by the user.”68 A trade group argued the law as a whole was content based
because it targeted websites based on whether they facilitated social interaction.69 The appeals
court disagreed with this characterization of the law, emphasizing that the law’s coverage
definition was not limited to social media platforms.70 Instead, the Ninth Circuit concluded that
the law applied “to websites whether they facilitate social interaction or other forms of content”
and was “content neutral.”71 Thus, this definition could be distinguished from the cases above
based on the fact that it did not apply only to social media platforms.
It is uncertain whether courts will consider a law content based if it targets sites solely because
they host social interactions. However, a number of trial courts have concluded that strict scrutiny
applies when a definition expressly exempts certain sites from coverage based on the type of
content they carry.72 As an example, a Virginia law required social media platforms to limit
minors’ time on their sites, absent parental consent.73 The law defined social media platform, in
relevant part, as a service that “connects users . . . to interact socially with each other” and allows
users to do things like construct a public profile and post content viewable by other users.74 The
law specifically exempted any service “that consists primarily of news, sports, entertainment,
ecommerce, or content preselected by the provider and not generated by users.”75 In a First
Amendment challenge, the trial court held that the law drew “distinctions between areas of
protected speech” and was therefore content based, triggering strict scrutiny.76 Specifically, the
law’s exemptions for “news, sports, entertainment, ecommerce, or interactive gaming content”
exempted “certain subject matter categories.”77 Other trial courts have similarly said that statutory
exemptions for sites carrying certain types of content trigger strict scrutiny.78
Some state laws apply only to platforms that target children or are likely to be accessed by
children.79 The Sixth Circuit concluded one such Ohio law was subject to strict scrutiny because
the coverage definition required consideration of “factors that are undeniably content-focused to
determine whether an Operator’s site ‘is reasonably anticipated to be accessed by children,’”
67 NetChoice, LLC v. Bonta, 152 F.4th 1002, 1009 (9th Cir. 2025).
68 Id. at 1016 (quoting CAL. HEALTH & SAFETY CODE § 27000.5(b)(1) (West 2026)).
69 Id.
70 Id.
71 Id.
72 See NetChoice v. Murrill, 812 F. Supp. 3d 594, 609 (M.D. La. 2025) (compiling citations for eight trial courts
granting preliminary injunctions). One of those cited rulings was not based on the coverage definition. Comput. &
Commc’ns Indus. Ass’n v. Uthmeier, 826 F. Supp. 3d 1358, 1379–83 (N.D. Fla. 2025), stayed pending appeal, No. 2511881, 2025 WL 3458571 (11th Cir. Nov. 25, 2025).
73 NetChoice v. Jones, 822 F. Supp. 3d 656, 664 (E.D. Va. 2026), appeal docketed, No. 26-1252 (4th Cir. Mar. 6,
2026).
74 Id. at 665.
75 Id. at 665–66.
76 Id. at 673.
77 Id.
78 E.g., NetChoice v. Hilgers, No. 4:26-CV-003149, 2026 WL 1850018, at *7–8 (D. Neb. June 27, 2026); NetChoice v.
Carr, 789 F. Supp. 3d 1200, 1220–21 (N.D. Ga. 2025), appeal docketed, No. 25-12436 (11th Cir. July 16, 2025);
NetChoice, LLC v. Griffin, No. 5:23-CV-005105, 2025 WL 978607, at *9–10 (W.D. Ark. Mar. 31, 2025), appeal
docketed, No. 25-1889 (8th Cir. May 2, 2025).
79 See, e.g., NetChoice, LLC v. Bonta (Bonta II), 170 F.4th 744, 755 (9th Cir. 2026).
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including the site’s content.80 In the court’s view, then, the law “disfavors subject matter that
appeals to Children.”81 In some contrast, the Ninth Circuit said that a California law targeting
services likely to be accessed by children might be content based in some applications but not
others.82 Certain aspects of the law could require platforms “to review the content that they
publish to determine whether it is directed at or otherwise appealing to children,” but other
aspects of the definition could mean the law applies regardless of the platform’s content.83 In the
context of a facial overbreadth challenge, the Ninth Circuit said it did yet not have sufficient
information to conclude that the law’s applications to protected expression substantially
outweighed its other applications.84
Considerations for Congress
The developing First Amendment jurisprudence on the scope of laws regulating online platforms
can guide Congress if it drafts a law containing a definition of online platforms. Various federal
proposals have used different definitions that target different entities.85 A federal law enacted in
2023 defines social media platform as
a website or internet medium that—
(A) permits a person to become a registered user, establish an account, or create a profile
for the purpose of allowing users to create, share, and view user-generated content through
such an account or profile;
(B) enables 1 or more users to generate content that can be viewed by other users of the
medium; and
(C) primarily serves as a medium for users to interact with content generated by other users
of the medium.86
Bills introduced in the 119th Congress contain different definitions of covered platforms that also
focus on whether the sites serve as a forum for user-generated content.87
In general, Supreme Court cases suggest that a law targeting only certain speakers can trigger
heightened constitutional review if the differential treatment “threatens to suppress the expression
of particular ideas or viewpoints.”88 A law that targets speech based on its content is
80 NetChoice, LLC v. Yost, 180 F.4th 268, 288 (6th Cir. 2025) (quoting OHIO REV. CODE ANN. § 1349.09(C) (West
2026)); id. at 319–20 (Ritz, J., dissenting) (agreeing with this aspect of the lead opinion).
81 Id. at 288 (opinion of Clay, J.).
82 Bonta II, 170 F.4th at 756–57.
83 Id. at 757.
84 Id. at 758.
85 See, e.g., CRS Report R47662, Defining and Regulating Online Platforms, coordinated by Clare Y. Cho (2023).
86 42 U.S.C. § 1862w(a)(2).
87 See, e.g., KIDS Act, H.R. 7757, 119th Cong. § 201 (2026) (including as elements of the definition that a platform
“uses a design feature to promote user engagement on the platform” and “uses the personal information of the user to
advertise, market, or make content recommendations”); Kids Off Social Media Act, S. 278, 119th Cong. § 102(6)(B)
(as reported, June 30, 2025) (excluding certain platforms from the definition, including platforms that have the primary
function of providing or facilitating “crowd-sourced reference guides,” “content that consists primarily of news, sports,
sports coverage, entertainment, or other information or content that is not user-generated but is preselected by the
platform,” or “business, product, or travel information”).
88 Leathers v. Medlock, 499 U.S. 439, 447 (1991); see generally Libr. of Cong., Laws Making Speaker-Based
Distinctions in Regulating Speech, CONSTITUTION ANNOTATED, https://constitution.congress.gov/browse/essay/amdt17-3-5/ALDE_00013699/ (last visited Aug. 24, 2026) (discussing when speaker-based distinctions trigger heightened
scrutiny).
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presumptively unconstitutional,89 and as discussed, lower courts have disagreed about when
definitions of online platforms are content based and render the law subject to strict scrutiny.90
Viewing the existing precedent as a whole, courts have been more likely to rule that a law is
content based if a definition applies to certain platforms based on the content they carry—such as
when a law expressly exempts sites because they carry news, sports, or entertainment content.91
Laws targeting sites that appeal to children may also be content based if the definition is based on
the content those sites carry.92 It is less clear whether courts will find a law content based solely
because it targets platforms that host social interactions.93
Congress might consider articulating content-neutral justifications for regulating certain
platforms. For instance, the Supreme Court said in one case that heightened constitutional
scrutiny is “unwarranted” when regulation is “‘justified by some special characteristic of’ the
particular medium being regulated.”94 In that case, the Court applied intermediate scrutiny to the
FCC’s “must carry” provisions that required cable systems to carry local broadcast television
stations.95 The Court concluded that the provisions were justified by the bottleneck monopoly
power cable operators exercised over the physical infrastructure making television available, and
emphasized that the regulations applied “to almost all cable systems in the country, rather than
just a select few.”96 Thus, the provisions did not raise a heightened danger of “suppression” of
speech.97 In another case, the Supreme Court said that a federal law singling out TikTok was
facially content neutral because it applied based on “a foreign adversary’s control over the
platform,” rather than any content on the platform.98 In the Court’s view, TikTok presented
“special characteristics,” and the law was “not ‘a subtle means of exercising a content
preference.’”99 Congress might consider whether any law regulating online platforms could
similarly define its coverage by reference to technological or other content-neutral characteristics
of the regulated medium.
For a discussion of policy considerations related to defining covered entities, see CRS Report
R47662, Defining and Regulating Online Platforms, coordinated by Clare Y. Cho (2023).
89 Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015).
90 Supra “Laws Defining Scope of Coverage.”
91 See cases cited supra notes 72 and 78.
92 See, e.g., Bonta II, 170 F.4th 744, 757 (9th Cir. 2026).
93 Compare supra note 59, with NetChoice, LLC v. Bonta, 152 F.4th 1002, 1016 (9th Cir. 2025), and Comput. &
Commc’ns Indus. Ass’n v. Uthmeier, No. 25-11881, 2025 WL 3458571, at *4 (11th Cir. Nov. 25, 2025).
94 Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 660–61 (1994) (quoting Minneapolis Star & Tribune Co. v. Minn.
Comm’r of Revenue, 460 U.S. 575, 585 (1983)).
95 Id. at 662.
96 Id. at 661.
97 Id.
98 TikTok Inc. v. Garland, 604 U.S. 56, 71 (2025). The challengers also argued the law was content based because it
could in the future extend to other companies, but excluded companies with the primary purpose of allowing users to
post product, business, or travel reviews. Id. The Supreme Court did not weigh in on that argument. Id. at 71–72.
99 Id. at 72 (quoting Turner Broad. Sys., Inc., 512 U.S. at 645). The challengers also claimed the government asserted
an additional, content-based rationale for the law; the Supreme Court believed the content-neutral rationale alone was
sufficient to justify the law, and therefore this second rationale did not trigger strict scrutiny. Id. at 78–79.
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Laws Restricting Minors’ Access to Platforms
Some states have enacted laws that require certain online platforms to limit when or how children
or teens (i.e., minors100) access the platforms. Many of these states—including Ohio,101
Georgia,102 Tennessee,103 and Louisiana104—prohibit covered platforms from creating an account
for a minor without first obtaining parental consent. Virginia requires that covered platforms limit
minors’ use of a platform to “one hour per day, per service or application” unless a parent changes
the time limit.105 Other states do not require limits on minors’ access to platforms themselves but
do require that platforms prohibit minors from using certain functions without parental consent.106
For example, Utah requires covered platforms to set default privacy settings for minors’ accounts
that restrict the accounts’ visibility and restrict the account holders’ ability to share content and
send direct messages to other accounts.107
Because these laws require platforms to treat minor users differently than adult users, platforms
may need to adopt age verification measures to determine whether a particular user is a minor.108
Some state laws expressly require age verification in certain circumstances.109 New York, for
example, prohibits covered platforms from providing “an addictive feed” to a user, unless a
platform has verified that the user is not a covered minor or has obtained parental consent.110
Online platforms have argued that many of these laws violate the First Amendment. Separate
from the definition-based challenges discussed above,111 platforms have contended that access
restrictions burden their ability to communicate with users and burden users’ own speech.112
100 States define minor differently in laws restricting access to online platforms, but the term generally refers to
individuals under the age of eighteen. Compare CAL. HEALTH & SAFETY CODE § 27000.5(d) (West 2026) (defining
minor as “an individual under 18 years of age who is located in the State of California”), with LA. STAT. ANN.
§ 51:1751 (2026) (defining minor as “an individual under circumstances where a social media company reasonably
believes or has actual knowledge that the individual is under the age of sixteen and is not emancipated or married”).
101 OHIO REV. CODE ANN. § 1349.09 (West 2026).
102 GA. CODE ANN. §§ 39-6-1 to 39-6-5 (West 2026).
103 TENN. CODE ANN. §§ 47-18-5701 to 47-18-5706 (West 2026).
104 LA. STAT. ANN. §§ 51:1751–:1759 (2026).
105
VA. CODE ANN. § 59.1-577.1 (2026).
106 See, e.g., UTAH CODE ANN. §§ 13-71-101 to 13-71-401 (West 2026); CAL. HEALTH & SAFETY CODE §§ 27000–
27007 (West 2026).
107 UTAH CODE ANN. § 13-71-202 (West 2026).
108 See, e.g., UTAH CODE ANN. § 13-71-201 (West 2026); GA. CODE ANN. § 39-6-2(a) (West 2026); VA. CODE ANN.
§ 59.1-577.1(B) (2026). For more information about age verification measures, see CRS Report R47884, Identifying
Minors Online, by Clare Y. Cho (2025), and CRS Legal Sidebar LSB11354, Supreme Court Upholds State AgeVerification Requirement for Certain Websites, by Victoria L. Killion (2025).
109 N.Y. GEN. BUS. LAW § 1501 (McKinney 2026); N.Y. COMP. R. & REGS. tit. 13, pt. 700 (2026).
110 N.Y. GEN. BUS. LAW § 1501 (McKinney 2026); N.Y. COMP. R. & REGS. tit. 13, pt. 700.4–700.5 (2026) (describing
requirements related to age verification). The New York law defines addictive feed based on how a platform
recommends, selects, or prioritizes media to display. N.Y. GEN. BUS. LAW § 1500(1) (McKinney 2026).
111 See supra “Laws Defining Scope of Coverage.”
112 E.g., NetChoice, LLC v. Jones, 822 F. Supp. 3d 656, 667–69 (E.D. Va. 2026), appeal docketed, No. 26-1252 (4th
Cir. Mar. 6, 2026); NetChoice, LLC v. Carr, 789 F. Supp. 3d 1200, 1214–16 (N.D. Ga. 2025), appeal docketed, No. 2512436 (11th Cir. July 16, 2025).
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First Amendment Background: Age Verification and Laws
Protecting Minors
The Supreme Court has addressed laws restricting minors’ access to speech in several contexts. In
1968, the Court affirmed a New York state conviction for selling magazines depicting nudity to a
minor.113 In the case, the Court held that a state may prohibit minors from accessing material the
legislature rationally deemed obscene as to those minors.114 Obscenity falls into one of the few
“narrowly limited classes of speech, the prevention and punishment of which have never been
thought to raise any Constitutional problem.”115
Outside this limited context of unprotected speech, though, “minors are entitled to a significant
measure of First Amendment protection,” and governments may “bar public dissemination of
protected materials to them” only in narrow circumstances.116 In a number of cases, the Supreme
Court has applied strict scrutiny to laws that restrict minors’ access to protected speech,
particularly when those laws regulate protected speech based on its content, as discussed
above.117 Strict scrutiny requires the government to show the law is the least restrictive means to
achieve a compelling interest.118 The Supreme Court, for example, applied strict scrutiny to a
California law that prohibited selling or renting violent video games to minors,119 and to a federal
law that required cable operators to limit certain non-obscene sexually-oriented programming “to
hours when children are unlikely to be viewing” the programs.120 In the latter case, the Court said
that “even where speech is indecent and enters the home” without parental consent, “the objective
of shielding children does not suffice to support a blanket ban if the protection can be
accomplished by a less restrictive alternative.”121
Looking at laws that specifically govern minors’ access to information online, the Court has
applied strict scrutiny to invalidate some—but not all—such laws based on the burden they
impose on adults’ speech.122 In 1997, the Court invalidated two provisions of the
Communications Decency Act (CDA) that prohibited the knowing transmission of indecent
messages to minors and the knowing display of “patently offensive messages in a manner that is
available” to minors.123 These prohibitions, the Court held, were content-based regulations that—
even though intended to protect children—burdened adults’ protected speech.124 Although the
CDA provided a defense for persons who employed certain age verification measures, the Court
113 Ginsberg v. New York, 390 U.S. 629, 636–43 (1968).
114 Id.
115 United States v. Stevens, 559 U.S. 460, 469 (2010) (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 571–72,
(1942)); see also “Obscenity” in Killion, CRS In Focus IF11072, The First Amendment: Categories of Speech, supra
note 37; infra “Laws Targeting Categories of Unprotected Speech.”
116 Erznoznik v. City of Jacksonville, 422 U.S. 205, 212–13 (1975) (citing Tinker v. Des Moines Sch. Dist., 393 U.S.
503 (1969)).
117 Supra “Laws Targeting Expression or Content.”
118 Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015).
119 Brown v. Ent. Merchs. Ass’n, 564 U.S. 786, 799 (2011).
120 United States v. Playboy Ent. Grp., Inc., 529 U.S. 803, 806, 813 (2000).
121 Id. at 814.
122 The Court held that there is “no basis for qualifying the level of First Amendment scrutiny that should be applied to”
expression on the internet. Reno v. ACLU, 521 U.S. 844, 870 (1997).
123 Id. at 859.
124 Id. at 874. The Court emphasized that the law “effectively suppresses a large amount of speech that adults have a
constitutional right to receive and to address to one another.” Id.
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determined that the defense did not significantly narrow the law’s burden on speech.125 Pointing
to the trial court’s findings in the case, the Supreme Court concluded that the age verification
measures at issue were both infeasible for some speakers and ineffective.126
Congress responded to the CDA’s invalidation by enacting the Child Online Protection Act
(COPA), which prohibited the “the knowing posting, for ‘commercial purposes,’ of World Wide
Web content that is ‘harmful to minors.’”127 Like the CDA, COPA included an affirmative defense
for persons who used specified age verification measures.128 When COPA was challenged on First
Amendment grounds, the Supreme Court again applied strict scrutiny, saying this was “a contentbased speech restriction.”129 The Court concluded that, based on the record before it, voluntary
blocking and filtering software appeared to be a less speech-restrictive alternative to age
verification.130 As part of its analysis, the Court discussed the burden on adults’ ability to “gain
access to speech they have a right to see.”131
In 2025, however, the Supreme Court applied intermediate scrutiny and upheld a Texas law that
required age verification to be used by certain commercial websites that distribute “sexual
material harmful to minors.”132 Based on Texas’s definition of sexual material harmful to minors,
the Court held that the law “regulates only speech that is obscene to minors,” and said that
category of speech “is unprotected to the extent the State seeks only to verify age.”133 In addition,
unlike the CDA and COPA, which incorporated age verification as a defense, the Texas law
provided that “the lack of age verification” is “an element that the State must plead and prove” to
establish a violation.134 These features, in the Court’s view, distinguished Texas’s law from the
CDA and COPA, which the Court said effectively banned adults’ access to a subset of protected
speech.135 By comparison, the Court reasoned, the “incidental burden” of age verification on
adults’ speech warranted applying intermediate scrutiny, rather than strict scrutiny, to Texas’s
law.136 The Court held that the law was sufficiently tailored to meet that standard because it
employed “established methods” of age verification used for “other age-restricted services.”137
125 Id. at 881–82.
126 Id.
127 Ashcroft v. ACLU, 542 U.S. 656, 661 (2004) (quoting 47 U.S.C. § 231(a)(1)).
128 Id. at 662.
129 Id. at 666.
130 Id. at 667–69.
131 Id. at 667.
132 Free Speech Coal., Inc. v. Paxton, 606 U.S. 461, 467, 477 (2025) (quoting TEX. CIV. PRAC. & REM. CODE ANN.
§ 129B.002(a)).
133 Id. at 482.
134 Id. at 489.
135 Id. at 486–91.
136 Id. at 495.
137 Id. at 497. For more information, see Killion, CRS Legal Sidebar LSB11354, Supreme Court Upholds State AgeVerification Requirement for Certain Websites, supra note 108.
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Judicial Decisions Addressing Laws That Restrict Minors’ Social
Media Access
Online platforms have challenged numerous state laws that restrict minors’ access to the
platforms. In most of these cases, federal trial courts have concluded that the challengers’ First
Amendment claims succeed or are likely to succeed.138
These trial courts have held that restricting access to social media restricts constitutionally
protected expression,139 though the courts have varied in their conclusions as to whose expression
is restricted. Some courts have held that restricting access to online platforms limits platforms’
rights to publish expression140—the First Amendment right at issue in Moody v. NetChoice,
LLC.141 In other cases, trial courts have held that access restrictions affect adult or minor users’
rights to express themselves on platforms.142 Some courts have held that both types of First
Amendment rights are at issue.143
In drawing these conclusions, courts have rejected states’ arguments that platform access
restrictions regulate only non-expressive conduct.144 Arkansas, for example, argued that “a
platform’s decision to allow minors on its platform” is not expressive.145 A federal trial court
hearing a challenge to Arkansas’s law disagreed, concluding that restricting access to online
platforms “ultimately impacts users’ speech.”146
Because restricting access to online platforms limits expression, courts have evaluated which
level of First Amendment scrutiny to apply to state laws that limit minors’ access.147 Most federal
trial courts hearing challenges to such laws have concluded that the laws are content based such
138 See NetChoice, LLC v. Jones, 822 F. Supp. 3d 656, 664 (E.D. Va. 2026), appeal docketed, No. 26-1252 (4th Cir.
Mar. 6, 2026); NetChoice v. Hilgers, No. 4:26-CV-3149, 2026 WL 1850018, at *11 (D. Neb. June 27, 2026);
NetChoice v. Murrill, 812 F. Supp. 3d 594, 664 (M.D. La. 2025); NetChoice, LLC v. Griffin, No. 5:23-CV-5105, 2025
WL 978607, at *14 (W.D. Ark. Mar. 31, 2025), appeal docketed, No. 25-1889 (8th Cir. May 2, 2025); NetChoice, LLC
v. Carr, 789 F. Supp. 3d 1200, 1210 (N.D. Ga. 2025), appeal docketed, No. 25-12436 (11th Cir. July 16, 2025);
NetChoice, LLC v. Fitch, 787 F. Supp. 3d 262, 281 (S.D. Miss. 2025); see also NetChoice, LLC v. Yost, 778 F. Supp.
3d 923, 957 (S.D. Ohio 2025), rev’d and remanded, 180 F.4th 268 (6th Cir. 2026). Some courts have addressed
challenges to laws that restrict minors’ access to social media platforms without deciding whether the challenges are
likely to succeed on the merits. See, e.g., NetChoice v. Skrmetti, No. 3:24-CV-01191, 2025 WL 1710228, at *14 (M.D.
Tenn. June 18, 2025) (denying a motion to preliminarily enjoin a Tennessee law because the challenger did not show
that it would suffer irreparable injury absent the injunction).
139 E.g., Jones, 822 F. Supp. 3d at 667; Griffin, 2025 WL 978607, at *8; Carr, 789 F. Supp. 3d at 1214.
140
Jones, 822 F. Supp. 3d at 667 (“[NetChoice’s] members’ First Amendment rights are implicated as they are
engaging in expressive activity when they disseminate third-party speech.”).
141 Moody v. NetChoice, LLC, 603 U.S. 707, 740 (2024); see supra “Foundational First Amendment Principles.”
142 Griffin, 2025 WL 978607, at *8 (“Act 689 forecloses access to social media for those minors whose parents do not
consent to the minor’s use of social media. It also burdens social media access for all Arkansans—both adults and
minors whose parents would allow them to use social media. . . . [T]he Court agrees that the age-verification
requirement will deter adults from speaking or receiving protected speech on social media.”).
143 Carr, 789 F. Supp. 3d at 1214 (“[T]he Act threatens social media platforms’ ability to communicate with young
audiences and burdens their ability to communicate with adults. Those burdens constitute First Amendment injuries.”);
id. at 1227 (describing “significant burdens on the First Amendment rights of social media platforms, young people,
and all users”).
144 E.g., NetChoice, LLC v. Fitch, 787 F. Supp. 3d 262, 276 (S.D. Miss. 2025).
145 Griffin, 2025 WL 978607, at *8.
146 Id. (citing S.B. 396, 94th Gen. Assemb., 2023 Reg. Sess. (Ark. 2023) (codified as amended at ARK. CODE ANN.
§§ 4-88-1401 to 4-88-1404 (2023)).
147 See supra “Laws Targeting Expression or Content.”
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that strict scrutiny applies.148 These courts have primarily pointed to provisions defining which
platforms are covered by the respective laws—an issue discussed earlier149—as the reason the
laws are content based.150 Generally, when courts have concluded that strict scrutiny applies to a
law restricting minors’ access to platforms, the courts have held that the law is or is likely
unconstitutional.151
Some other trial courts have determined that restrictions on minors’ access to platforms violate or
likely violate the First Amendment even under the intermediate scrutiny standard.152 For example,
a trial court reviewing a Florida law (Florida’s HB3) applied intermediate scrutiny and concluded
that “the law’s restrictions”—banning children under fourteen years old from accessing social
media platforms and requiring parental consent for fourteen- and fifteen-year-olds— “are an
extraordinarily blunt instrument for furthering” the government’s interest in limiting children’s
exposure to purportedly addictive features on the platforms.153 The court therefore decided that
Florida’s HB3 was likely unconstitutional and preliminarily enjoined its enforcement.154
A divided panel of the Eleventh Circuit temporarily stayed the district court’s preliminary
injunction pending appeal.155 The panel majority agreed with the trial court that intermediate
scrutiny applied,156 but the appellate court concluded that Florida’s law likely does not violate the
First Amendment.157 Florida “is likely to establish,” the court explained, “that it has a legitimate
and substantial interest in regulating young minors’ use of platforms employing addictive
features,” and that the law’s restrictions were appropriately tailored to this interest.158 To support
the tailoring conclusion, the Eleventh Circuit pointed out that Florida’s restrictions did not apply
148 See, e.g., NetChoice v. Jones, 822 F. Supp. 3d 656, 674 (E.D. Va. 2026) (“Having determined that the definition of
‘social media platform’ in SB 854 creates content-based regulations of speech, the Court now evaluates whether SB
854 can withstand strict scrutiny analysis.”); Fitch, 787 F. Supp. 3d at 276 (“The facial distinctions H.B. 1126 draws
based on the message a particular digital service provider conveys, or the more subtle content-based restrictions based
upon the speech's function or purpose, render the Act content-based, and therefore subject to strict scrutiny.”).
149 See supra “Laws Defining Scope of Coverage.”
150 See, e.g., Jones, 822 F. Supp. 3d at 662 (“SB 854’s definition of ‘social media platform’ contains exemptions” that
“overtly make[] a distinction based on the following topics: news, sports, entertainment, and ecommerce. There is no
limitation on speech for those topics. However, presumably for other topics there would be a . . . restriction.”); Fitch,
787 F. Supp. 3d at 275 (“Essentially, H.B. 1126 treats or classifies digital service providers differently based upon the
nature of the material they disseminate, whether it is ‘social interaction,’ as opposed to ‘news, sports, commerce, [or]
online video games.’” (quoting H.B. 1126, 2026 Gen. Assemb., Reg. Sess. § 3(1)(a), (2)(c)(i) (Miss. 2026))).
151 See, e.g., Jones, 822 F. Supp. 3d at 676; Fitch, 787 F. Supp. 3d at 280.
152 Comput. & Commc’ns Indus. Ass’n v. Uthmeier, 826 F. Supp. 3d 1358, 1382 (N.D. Fla. 2025), stayed pending
appeal, No. 25-11881, 2025 WL 3458571 (11th Cir. Nov. 25, 2025); see also Jones, 822 F. Supp. 3d at 676 (“Even if
SB 854 is analyzed under the more lenient intermediate scrutiny standard, it is still likely to fail.”); NetChoice v.
Murrill, 812 F. Supp. 3d 594, 651 (M.D. La. 2025) (“The Act’s age-verification and parental-consent requirements fail
strict and intermediate scrutiny.”); Fitch, 787 F. Supp. 3d at 281 (“Simply put, the Act is not sufficiently narrowly
tailored to serve the State’s interests even under intermediate scrutiny.”). In one of these cases, the reviewing court held
that the law at issue was content neutral and should therefore be subject to intermediate scrutiny. Uthmeier, 826 F.
Supp. 3d at 1379–82. In the other cases, the reviewing courts held that the law at issue did not satisfy strict or
intermediate scrutiny, so it was likely unconstitutional under either standard. Jones, 822 F. Supp. 3d at 676; Murrill,
812 F. Supp. 3d at 651; Fitch, 787 F. Supp. 3d at 280.
153 Uthmeier, 826 F. Supp. 3d at 1383 (citing H.B. 3, 28th Leg., 2d Reg. Sess. (Fla. 2024) (codified as amended at FLA.
STAT. §§ 501.1736–501.1738 (2024))).
154 Id. at 1390.
155 Comput. & Commc’ns Indus. Ass’n v. Uthmeier, No. 25-11881, 2025 WL 3458571, at *1 (11th Cir. Nov. 25, 2025).
156 Id. at *4. As discussed earlier, the appeals court held that the coverage definition in Florida’s HB3 was content
neutral. See supra “Laws Defining Scope of Coverage.”
157 Uthmeier, 2025 WL 3458571, at *6.
158 Id.
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at all to “older minors” above the age of fifteen, and that, rather than bar minors from social
media altogether, the law “simply prevents them from creating accounts on platforms that employ
addictive features.”159
Other trial court decisions on the constitutionality of state age restrictions on platform access have
also been appealed to U.S. Courts of Appeals.160 Although most of these appeals have not been
resolved as of the date of this writing, the Sixth Circuit has rejected a facial First Amendment
challenge to Ohio’s Parental Notification by Social Media Operators Act.161 Ohio’s law required
that covered platforms either obtain verifiable parental consent for any contract with a minor—
including “terms and conditions precedent to creating user accounts”—or deny the minor access
to the platform.162 Two judges on the Sixth Circuit panel hearing the First Amendment challenge
to this law agreed the challenge failed,163 though the judges disagreed about why it failed.164 One
judge held that Ohio’s law was subject to but survived strict scrutiny.165 The other judge held that
the facial challenge failed because the challengers did not provide an adequate record for the
court “to decide which of [The Act’s] applications violate the First Amendment, and to measure
them against the rest.”166 As a result, the judge concluded, the challengers “manifestly failed to
meet [their] overbreadth burden under” Moody v. NetChoice, LLC.167
In addition to the decisions from the Sixth and Eleventh Circuits, one Supreme Court Justice has
weighed in at a preliminary stage of a challenge to a Mississippi law (Mississippi’s HB1126)
requiring parental consent before a minor creates an account with a covered platform.168 Like
Florida’s HB3, a trial court preliminary enjoined Mississippi’s HB1126, finding that the law
likely violates the First Amendment.169 In the trial court’s view, the law did not survive either
strict or intermediate scrutiny.170 As with Florida’s HB3, a federal appellate court agreed to stay
159 Id.
160 See NetChoice, LLC v. Fitch, No. 25-60348, 2025 WL 2078435 (5th Cir. July 17, 2025); NetChoice, LLC v. Reyes,
748 F. Supp. 3d 1105 (D. Utah 2024), appeal docketed, No. 24-4100 (10th Cir. Oct. 11, 2024); NetChoice, LLC v.
Carr, 789 F. Supp. 3d 1200 (N.D. Ga. 2025), appeal docketed, No. 25-12436 (11th Cir. July 16, 2025); NetChoice,
LLC v. Griffin, No. 5:23-CV-5105, 2025 WL 978607 (W.D. Ark. Mar. 31, 2025), appeal docketed, No. 25-1889 (8th
Cir. May 2, 2025); NetChoice v. Murrill, 812 F. Supp. 3d 594 (M.D. La. 2025), appeal docketed, No. 26-30016 (5th
Cir. Jan. 14, 2026); NetChoice v. Jones, 822 F. Supp. 3d 656 (E.D. Va. 2026), appeal docketed, No. 26-1252 (4th Cir.
Mar. 6, 2026).
161 NetChoice, LLC v. Yost, 180 F.4th 268, 275 (6th Cir. 2026) (discussing H.B. 33, 135th Gen. Assemb., Reg. Sess.
(Ohio 2023)).
162 Id. at 277–79 (opinion of Clay, J.).
163 Id. at 292 (opinion of Clay, J.); id. at 297 (Batchelder, J., concurring in the judgment).
164 Id. at 292–93 (opinion of Clay, J.); id. at 297–98 (Batchelder, J., concurring in the judgment). Both judges agreed,
however, that the platforms challenging the law lacked standing to assert the First Amendment rights of minor users
and therefore could rely only on their own free speech rights in the challenge. Id. at 285 (opinion of Clay, J.); id. at 309
(Batchelder, J., concurring in the judgment).
165 Id. at 286–93 (opinion of Clay, J.).
166 Id. at 310 (Batchelder, J., concurring in the judgment) (quoting Moody v. NetChoice, LLC, 603 U.S. 707, 725
(2024)).
167 Id. at 315; see supra “Facial Challenges” (discussing plaintiffs’ burden under Moody v. NetChoice, LLC).
168 NetChoice, LLC v. Fitch, 145 S. Ct. 2658 (2025) (mem.); NetChoice, LLC v. Fitch, 787 F. Supp. 3d 262, 269 (S.D.
Miss. 2025).
169 Fitch, 787 F. Supp. 3d at 283.
170 Id. at 275–76, 281. The definition at issue excluded a platform if it “[p]rimarily functions to provide a user with
access to news, sports, commerce, online video games or content primarily generated or selected by the digital service
provider.” Id. at 275 (citing H.B. 1126, Gen. Assemb., 2025 Reg. Sess. § 3(2)(c)(i) (Miss. 2025)). According to the
court, this coverage definition can “be viewed as either drawing a facial distinction based on the message the digital
(continued...)
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the trial court’s preliminary injunction pending appeal.171 The challengers then asked the Supreme
Court to reverse the stay,172 and the Supreme Court declined to do so.173 Although the Supreme
Court’s order did not provide reasoning, Justice Kavanaugh wrote a statement concurring in the
denial of the application in which he explained that, in his view, while the platforms challenging
Mississippi’s HB1126 had not satisfied the stringent standard for interim relief, they had
nonetheless demonstrated that they were likely to succeed on their First Amendment claims.174
Considerations for Congress
Some Members of Congress have proposed federal restrictions on minor users’ access to certain
online platforms.175 The Kids Off Social Media Act, for example, would provide that “[a] social
media platform shall not permit an individual to create or maintain an account or profile if it
knows that the individual is a child” under 13 years old.176 The KIDS Act, which passed the
House in 2026, would impose age verification requirements for certain websites that publish adult
content.177 Although many cases challenging state restrictions on minors’ access to online
platforms are still proceeding,178 court opinions to date provide some guidance about how courts
would likely evaluate a federal restriction on minors accessing particular online platforms.
A number of courts reviewing state restrictions on minors’ access to online platforms have
determined that the laws are either content based or content neutral depending on the way the
laws at issue define which platforms are subject to the restrictions.179 Accordingly, the First
Amendment issues related to definitions of platforms covered by a law, discussed above,180 are
service provider conveys (i.e., news and sports versus social interaction), or a more subtle content-based restriction
defining regulated speech by its function or purpose (i.e., providing news and sports as opposed to facilitating social
interaction).” Id. at 275–76.
171 NetChoice, LLC v. Fitch, No. 25-60348, 2025 WL 2078435, at *1 (5th Cir. July 17, 2025). The circuit court’s onesentence order granting the stay did not explain the court’s reasoning. Id.
172 Fitch, 145 S. Ct. at 2658.
173 Id.
174 Id. (Kavanaugh, J., concurring in the denial of the application to vacate stay) (citing Moody v. NetChoice, LLC, 603
U.S. 707 (2024); Brown v. Ent. Merchs. Ass’n, 564 U.S. 786 (2011); Free Speech Coal., Inc. v. Paxton, 606 U. S. 461
(2025)). Because Justice Kavanaugh wrote only for himself, his statements do not necessarily provide information
about the other eight Justices’ views.
175 See, e.g., Kids Off Social Media Act, S. 278, 119th Cong. (2026); Kids Off Social Media Act, H.R. 7433, 119th
Cong. (2026); App Store Accountability Act, S. 1586, 119th Cong. (2025); App Store Accountability Act, H.R. 3149,
119th Cong. (2025).
176 S. 278 § 103(a); H.R. 7433 § 103(a).
177 KIDS Act, H.R. 7757, 119th Cong. § 103 (2026).
178 See NetChoice, LLC v. Fitch, No. 25-60348, 2025 WL 2078435 (5th Cir. July 17, 2025); NetChoice, LLC v. Reyes,
748 F. Supp. 3d 1105 (D. Utah 2024), appeal docketed, No. 24-4100 (10th Cir. Oct. 11, 2024); NetChoice, LLC v.
Carr, 789 F. Supp. 3d 1200 (N.D. Ga. 2025), appeal docketed, No. 25-12436 (11th Cir. July 16, 2025); NetChoice,
LLC v. Yost, 778 F. Supp. 3d 923 (S.D. Ohio 2025), rev'd and remanded on other grounds, 180 F.4th 268 (6th Cir.
2026); NetChoice, LLC v. Griffin, No. 5:23-CV-5105, 2025 WL 978607 (W.D. Ark. Mar. 31, 2025), appeal docketed,
No. 25-1889 (8th Cir. May 2, 2025); NetChoice v. Murrill, 812 F. Supp. 3d 594 (M.D. La. 2025), appeal docketed, No.
26-30016 (5th Cir. Jan. 14, 2026); NetChoice v. Jones, 822 F. Supp. 3d 656 (E.D. Va. 2026), appeal docketed, No. 261252 (4th Cir. Mar. 6, 2026).
179 See, e.g., Jones, 822 F. Supp. 3d at 672 (“SB 854’s definition of ‘social media platform’ contains exemptions” that
“overtly make[] a distinction based on the following topics: news, sports, entertainment, and ecommerce. There is no
limitation on speech for those topics. However, presumably for other topics there would be a . . . restriction.”); Fitch,
787 F. Supp. 3d at 275 (“Essentially, H.B. 1126 treats or classifies digital service providers differently based upon the
nature of the material they disseminate, whether it is ‘social interaction,’ as opposed to ‘news, sports, commerce, [or]
online video games.’” (quoting H.B. 1126, Gen. Assemb., 2025 Reg. Sess. § 3(1)(a), (2)(c)(i) (Miss. 2025)).
180 See supra “Laws Defining Scope of Coverage.”
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important to determining the standard of scrutiny a court is likely to apply to a law that restricts
minor access to an online platform.
Courts that have treated minor-access restrictions as content neutral, and thus applied
intermediate scrutiny, have usually determined that the protection of minor users is a legitimate
and substantial interest.181 The courts’ conclusions about whether the restrictions at issue are
constitutional have therefore turned on tailoring.182 The Eleventh Circuit concluded that a Florida
law was likely constitutional after explaining that the law did not “block[] children from
accessing social media altogether.”183 Instead, it restricted minors only from “creating accounts
on platforms that employ addictive features” and are often used by “children and young teens.”184
By comparison, a federal trial court concluded that a Mississippi law did not survive intermediate
scrutiny when it “preclude[d] minors under 18 years old from accessing all content on social
media websites, absent affirmative parental consent, regardless of whether the content concerns
or negatively affects minors’ physical and psychological wellbeing.”185 Based on these decisions,
Congress might consider ways to narrowly tailor laws that restrict minors’ access to online
platforms, especially by preserving minors’ ability to access content that is not likely to be
harmful.
For more considerations related to identifying minors online, see CRS Report R47884, Identifying
Minors Online, by Clare Y. Cho (2026).
Laws Targeting Particular Content or Harms
Laws that target specific types of online content can raise concerns that the government is
restricting speech because of hostility to the ideas or messages conveyed, potentially triggering
heightened constitutional scrutiny. Even if the government focuses on specific harms caused by
speech rather than expressly targeting the speech itself, a law might trigger strict constitutional
scrutiny if, for example, the law requires regulated platforms to address those harms by restricting
speech. At the same time, Supreme Court jurisprudence establishes that the government can
restrict certain, historically limited types of content.186 Laws narrowly targeted at these so-called
unprotected categories of speech, such as commercial fraud or obscenity, therefore might not
violate the First Amendment.187
Laws Targeting Particular Content
Some state laws have focused on restricting online content that legislatures have identified as
particularly harmful, or on encouraging sites to host speech seen as valuable. However, as
discussed above, laws that restrict or compel speech based on “the topic discussed or the idea or
message expressed” usually trigger a heightened standard of constitutional review known as strict
181 Comput. & Commc’ns Indus. Ass’n v. Uthmeier, No. 25-11881, 2025 WL 3458571, at *5 (11th Cir. Nov. 25, 2025).
182 Id. at *6.
183 Id.
184 Id.
185 NetChoice, LLC v. Fitch, 787 F. Supp. 3d 262, 281 (S.D. Miss. 2025).
186 E.g., R.A.V. v. City of St. Paul, 505 U.S. 377, 382–83 (discussing these “few limited areas” where “our society . . .
has permitted restrictions upon the content of speech”).
187 See, e.g., id. at 383, 388.
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scrutiny.188 Strict scrutiny requires the government to show the law is the least restrictive means
to achieve a compelling interest.189
As an example, Texas’s Securing Children Online Through Parental Empowerment (SCOPE) Act
required covered platforms to create “a strategy to prevent” minors from being exposed to
“content that promotes, glorifies, or facilitates” substance abuse, self-harm, bullying, and
harassment, among other categories.190 As part of this strategy, the Act required platforms to use
filtering technology to block the specified content.191 A trial court said these “monitoring-andfiltering requirements” were “as content based as it gets”: they “explicitly identify discrete
categories of speech and single them out to be filtered and blocked.”192 The court thus applied
strict scrutiny and concluded the law was not narrowly tailored, preliminarily enjoining the
filtering requirement.193 On appeal, the Fifth Circuit affirmed this outcome without reaching the
constitutional question.194 The appeals courts held instead that federal law preempted the state’s
monitoring and filtering requirement—a legal issue discussed at the end of this report.195 While
the Fifth Circuit did not affirm the trial court’s First Amendment reasoning, it observed in its
preemption analysis that the provisions at issue were “all about filtering content.”196
Similarly, an Arkansas trial court applied strict scrutiny to a law creating liability for knowingly
or willfully facilitating a minor’s exposure to “‘online content promoting, or otherwise
advocating, self-harm or suicide,’ if, ‘following exposure to’ that content, the minor ‘commits
suicide or attempts to commit suicide that results in significant bodily or cognitive harm.’”197 The
court viewed the law as content based, as liability was premised on the content of the speech to
which the minor user was exposed.198 Applying strict scrutiny, the court assumed the state had a
compelling interest in preventing self-harm but said the state had not shown why its existing
criminal prohibitions on encouraging suicide would not be sufficient to achieve that goal.199
Some courts have also applied or suggested they would apply strict scrutiny to state social media
laws that appear to compel speech rather than restrict it based on its content.200 For instance,
litigants raised compelled speech concerns with a Florida law preventing platforms from
restricting the content of political candidates or “journalistic enterprises”—arguably compelling
188 Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015); supra “Laws Targeting Expression or Content.”
189 Reed, 576 U.S. at 163.
190 H.B. 18, 88th Leg., 2023 Reg. Sess. (Tex. 2023) (codified as amended at TEX. BUS. & COM. CODE ANN. § 509.053(a)
(West 2026)).
191 TEX. BUS. & COM. CODE ANN. § 509.053(b).
192 Comput. & Commc’ns Indus. Ass’n v. Paxton, 747 F. Supp. 3d 1011, 1036 (W.D. Tex. 2024), aff’d on other
grounds, No. 24-50721, 2026 WL 2130729 (5th Cir. July 24, 2026).
193 Id. The court also doubted the state’s ability to prove it had a compelling interest for all of the categories of content
listed in the law. Id.
194 Comput. & Commc’ns Indus. Ass’n, 2026 WL 2130729, at *14.
195 Id.; infra “Section 230 of the Communications Act of 1934.”
196 Comput. & Commc'ns Indus. Ass’n, 2026 WL 2130729, at *12.
197 NetChoice v. Griffin, 812 F. Supp. 3d 905, 919 (W.D. Ark. 2025), appeal docketed, No. 26-1096 (8th Cir. Jan. 16,
2026).
198 Id. at 920.
199 Id. at 922–23.
200 See generally, e.g., CRS In Focus IF12388, First Amendment Limitations on Disclosure Requirements, by Valerie
C. Brannon et al. (2023). General disclosure or transparency requirements are discussed in more detail in a later
section, infra “Laws Requiring Disclosures.” This section discusses laws requiring disclosures about specific types of
user-generated content.
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the platforms to carry potentially unwanted speech.201 The Eleventh Circuit said these provisions
were “self-evidently content-based and thus subject to strict scrutiny.”202 The court explained that,
as an example, “the restriction on deprioritizing posts ‘about . . . a candidate,’ . . . regulates
speech based on ‘the topic discussed,’ . . . and is therefore clearly content-based.”203
The Supreme Court subsequently vacated this Eleventh Circuit opinion and another opinion
appealed from the Fifth Circuit, but did so “for reasons separate from the First Amendment
merits.”204 Nonetheless, the Court expanded on the First Amendment merits, saying the
discussion was necessary to prevent the Fifth Circuit from repeating errors in its substantive
analysis on remand.205 Specifically, the Court reasoned that when online platforms like Facebook
and YouTube “use their Standards and Guidelines to decide which third-party content those feeds
will display, . . . they are making expressive choices” that “receive First Amendment
protection.”206 The Court did not specifically rule on the Eleventh Circuit’s First Amendment
analysis and did not clarify whether regulations of the platforms’ editorial choices should receive
intermediate or strict scrutiny.207 Litigation of Florida’s law is proceeding on remand.208 Under the
Supreme Court’s approach, it is possible (but not guaranteed) for the lower courts to conclude
again that the Florida law’s provisions on political candidates and journalistic enterprises are
content based and trigger strict scrutiny. In an order concluding there were outstanding factual
disputes, the trial court said that the platforms used “mixed curation” driven by both “human
editorial discretion and . . . algorithms or artificial intelligence.”209 The court further held that “the
First Amendment applies to mixed curation” and Florida’s “regulation must pass appropriate First
Amendment scrutiny.”210
The compelled speech issue also came up in litigation over a New York law requiring platforms
to have a policy and reporting mechanism for “hateful conduct.”211 The law defined hateful
conduct as using social media “to vilify, humiliate, or incite violence against a group or a class of
persons on the basis of race, color, religion, ethnicity, national origin, disability, sex, sexual
orientation, gender identity or gender expression.”212 The Second Circuit said this law would
201 NetChoice, LLC v. Moody, 546 F. Supp. 3d 1082, 1084–85 (N.D. Fla. 2021), aff’d in part, vacated in part,
remanded sub nom., NetChoice, LLC v. Att’y. Gen., 34 F.4th 1196 (11th Cir. 2022), vacated and remanded sub nom.,
Moody v. NetChoice, 603 U.S. 707 (2024).
202 NetChoice, 34 F.4th at 1226.
203 Id. (first quoting FLA. STAT. § 501.2041(2)(h) (2023), and then Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015)).
204 Moody, 603 U.S. at 717. The Court held that the lower courts’ analysis did not properly account for the plaintiffs’
facial challenges. Id. at 717–18. For a discussion of this aspect of the Court’s ruling, see supra “Facial Challenges.”
205
Moody, 603 U.S. at 726–27.
206 Id. at 740.
207 See id. The Supreme Court did say, however, that the Eleventh Circuit “saw the First Amendment issues much as
we do.” Id. at 727.
208 See NetChoice, LLC v. Uthmeier, No. 4:21-CV-00220, 2025 WL 3534514, at *14 (N.D. Fla. May 22, 2025)
(denying motion to dismiss and holding the amended complaint “plausibly alleges some of the challenged provisions,”
including the provision prohibiting a platform from using post-prioritization algorithms for content “about” a political
candidate, “are unconstitutionally vague”). The trial court denied both parties’ motions for summary judgment, Order
Denying Summary Judgment at 2, NetChoice, LLC v. Uthmeier, No. 4:21-CV-00220 (N.D. Fla. June 18, 2026), Dkt.
No. 335, and has set a trial date of February 8, 2027.
209 Order Denying Summary Judgment at 8, NetChoice, LLC v. Uthmeier, No. 4:21-CV-00220 (N.D. Fla. June 18,
2026), Dkt. No. 335.
210 Id. at 9.
211 Volokh v. James, 148 F.4th 71, 81 (2d Cir. 2025). This case is also discussed infra “Laws Requiring Other Types of
Disclosures.”
212 N.Y. GEN. BUS. LAW § 394-ccc(a) (McKinney 2026).
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trigger heightened constitutional scrutiny and “unconstitutionally burden the social media
networks’ First Amendment rights” if it was interpreted to require “disclosures that reference
‘hateful conduct’ or affirmatively encompass speech fitting within that definition.”213 At the same
time, the federal appeals court did not definitively rule on the law’s constitutionality, instead
referring the matter to the state’s highest court to determine the law’s proper interpretation.214 The
New York Court of Appeals subsequently concluded platforms could comply with the law without
referring to the statutory definition of hateful conduct, so long as the required reporting
mechanism was broad enough to allow users to report content falling within the statutory
definition and the platforms’ reporting similarly included content falling within the definition.215
Laws Targeting Advertisements and Commercial Speech
Some states have adopted laws restricting advertising to minors on online platforms, such as by
prohibiting using minors’ personal information to display advertisements to them.216 Texas, for
instance, prohibited targeting minors with advertisements for activities that are unlawful for
minors.217
Many advertisements are viewed by courts as commercial speech, which receives different
treatment under the First Amendment.218 The Supreme Court has defined commercial speech both
as speech that “does ‘no more than propose a commercial transaction’”219 and as “expression
related solely to the economic interests of the speaker and its audience.”220 The Court has often
held that advertisements for goods or services have qualified as commercial speech.221 At the
same time, the Court has acknowledged that in some instances, speech may lose “its commercial
character when it is inextricably intertwined with otherwise fully protected speech”—such as in
the context of charitable solicitation.222
Restrictions of commercial speech are ordinarily subject to a constitutional analysis known as
Central Hudson intermediate scrutiny.223 In Central Hudson Gas & Electric Corp. v. Public
213 Volokh, 148 F.4th at 89–90.
214 Id. at 100.
215 Volokh v. James, No. 58, 2026 WL 1790976, at *5 (N.Y. June 23, 2026) (“For example, a network might disclose
that out of respect for its users’ freedom of expression, it will not regulate or remove any content posted on its platform.
Such a disclosure would necessarily inform users that the network will do nothing in response to reports falling within
the statutory definition of hateful conduct—or any other content.”).
216 E.g., GA. CODE ANN. § 9-6-3 (2026); LA. STAT. § 51:1753 (2026); S.C. CODE ANN. § 39-80-40(C) (2026).
217 TEX. BUS. & COM. CODE ANN. § 509.055 (West 2026).
218 E.g., Zauderer v. Off. of Disciplinary Couns., 471 U.S. 626, 637 (1985).
219 Va. State Bd. of Pharm. v. Va. Citizens Consumer Council, 425 U.S. 748, 762 (1976) (quoting Pitt. Press Co. v. Pitt.
Comm’n on Hum. Rels., 413 U.S. 376, 385 (1973)).
220 Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557, 561 (1980). See also, e.g., Bolger v. Youngs
Drug Prods. Corp., 463 U.S. 60, 66–67 (1983) (concluding pamphlets are commercial speech due to a combination of
three factors, none of which was sufficient on its own: (1) they “are conceded to be advertisements”; (2) they refer “to a
specific product”; and (3) the company “has an economic motivation for mailing the pamphlets”).
221 E.g., Zauderer, 471 U.S. at 637; Cent. Hudson, 447 U.S. at 561–62; Va. State Bd. of Pharm., 425 U.S. at 762.
222 Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S. 781, 796 (1988). Cf., e.g., Bd. of Trs. of State Univ. of N.Y.
v. Fox, 492 U.S. 469, 474–75 (1989) (applying commercial speech standards to a sales pitch, holding that including
informational home economics elements did not render the “entirety” of the sales pitch noncommercial, where “there is
nothing whatever ‘inextricable’ about the noncommercial aspects of these presentations”).
223 This standard of intermediate scrutiny is similar to the intermediate scrutiny applied to content-neutral speech
regulations. See, e.g., Killion, CRS Report R47986, Freedom of Speech: An Overview, supra note 33. Certain laws
requiring disclosures of commercial speech may be subject to a lower level of scrutiny, discussed infra “First
Amendment Background: Compelled Speech and Commercial Disclosure Requirements.”
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Service Commission, the Supreme Court announced general principles governing review of
commercial speech.224 First, to be protected by the First Amendment, commercial speech “must
concern lawful activity and not be misleading.”225 If the commercial speech is protected, then the
government must show its regulation of that speech “directly advances” a “substantial”
government interest and “is not more extensive than is necessary to serve that interest.”226
As compared to laws generally regulating commercial speech, laws specifically prohibiting
advertisements of unlawful activity are unlikely to violate the First Amendment, since such
speech is considered unprotected and therefore can be banned.227 Intermediate scrutiny might still
apply, however, if an advertisement involves activity that is illegal for some but not others. For
instance, the Supreme Court applied intermediate scrutiny to evaluate a state law aimed at
limiting the advertisement of tobacco products to minors—advertising that is protected as to
adults.228 The Court held that a number of the advertising restrictions were not sufficiently
narrowly tailored and failed intermediate scrutiny.229 Accordingly, a law restricting online
advertisements of activities that are illegal as to minors but not adults may receive intermediate
scrutiny to assess the extent and necessity of the burden on legal speech. This is a fact-specific
analysis.230
A law regulating all forms of paid advertising will likely involve lawful speech, including fully
protected noncommercial advertising.231 The two trial courts that have thus far reviewed state
laws prohibiting targeted advertising to minors have ruled the bans likely unconstitutional,
although one of those rulings was reversed on procedural grounds.232 A Louisiana federal court
suggested a law that prohibited displaying “any advertising in [a minor’s] account based on the
Louisiana minor account holder’s personal information, except age and location” might be
subject to strict scrutiny since the law was not limited to commercial advertisements and
regulated “what material these companies can publish.”233 Ultimately, the court was unsure
whether intermediate or strict scrutiny should apply but concluded the law failed either level of
review.234 The court doubted whether the state had shown that targeted advertising, in particular,
causes harms to minors.235 In addition, the court observed that the prohibition was “far from the
224 447 U.S. at 563–66.
225 Id. at 566.
226 Id.
227 Id.; see also, e.g., Pitt. Press Co. v. Pitt. Comm’n on Hum. Rels., 413 U.S. 376, 388 (1973) (holding the government
can prohibit advertisements of “illegal commercial activity”—specifically, discriminatory employment).
228
Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 554–55, 571 (2001); see also, e.g., Junior Sports Mags. Inc. v. Bonta,
80 F.4th 1109, 1113 (9th Cir. 2023) (holding California law prohibiting advertising firearms in a way that is attractive
to minors failed intermediate scrutiny review, mentioning among other factors that “it sweeps in truthful ads about
lawful use of firearms for adults and minors alike”).
229 Lorillard Tobacco Co., 533 U.S. at 562 (emphasizing the “substantial geographical reach” of a ban on advertising in
the vicinity of schools or playgrounds); id. at 566 (concluding a ban on indoor advertisements lower than five feet is
likely ineffective at protecting children, saying that children “have the ability to look up”).
230 For instance, in Lorillard, unlike the ban on indoor advertisements lower than five feet, the Court upheld restrictions
on self-service displays and a requirement that tobacco products be placed out of the reach of all consumers. Id. at 569.
231 E.g., NetChoice v. Murrill, 812 F. Supp. 3d 594, 654 (M.D. La. 2025).
232 Id.; Students Engaged in Advancing Tex. v. Paxton, 765 F. Supp. 3d 575, 598 (W.D. Tex. 2025), vacated sub nom.,
Comput. & Commc’ns Indus. Ass’n v. Paxton, No. 24-50721, 2026 WL 2130729, at *14 (5th Cir. July 24, 2026)
(concluding the plaintiffs lacked standing).
233
Murrill, 812 F. Supp. 3d at 653–54 (alteration in original) (quoting LA. STAT. § 51:1753(2) (2026)).
234 Id.
235 Id.
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least restrictive option:” the state could have adopted an opt-out approach instead, allowing
“minor account holders to opt out of targeted advertising (or all advertising, for that matter).”236
Laws Targeting Categories of Unprotected Speech
As mentioned, the Supreme Court has recognized that certain historically limited categories of
speech, such as defamation or fraud, can be restricted without automatically triggering strict
scrutiny.237 In considering the constitutionality of a law that targets so-called unprotected
categories of speech, courts assess whether the prohibited speech falls within the contours of
these historically limited categories,238 whether the law creates additional content- or viewpointbased distinctions within a category,239 and whether the prohibition itself contains sufficient
constitutional safeguards, such as a scienter requirement that the offender must “know” the nature
of the material.240
As a potential example, California enacted a law requiring social media platforms to provide a
mechanism to users to report child sexual abuse material (CSAM)—a term defined to include
federally defined “child pornography”—and requiring platforms to block that material in certain
circumstances.241 The Supreme Court has said the government can prohibit CSAM.242 Thus,
California might claim that its law is constitutional to the extent it targets only an unprotected
category of speech.
At the same time, the Court has recognized that the government’s “authority to proscribe child
pornography is not . . . unlimited.”243 In 2002, the Court held that a prior version of the federal
definition of child pornography was unconstitutional, to the extent it banned material that
“appear[ed] to” depict child sexual abuse but did not depict an actual child.244 The Court observed
that beyond images involving child abuse, the law could encompass presumably protected speech
such as “a picture in a psychology manual, as well as a movie depicting the horrors of sexual
abuse.”245 It also distinguished “virtual” images from “actual” abuse material.246 In light of this
decision, lower courts in recent years have considered whether the First Amendment is a potential
defense in CSAM prosecutions involving the distribution or possession of AI-generated or
digitally altered images.247 A court assessing California’s requirement that platforms remove
236 Id.
237 Killion, CRS In Focus IF11072, The First Amendment: Categories of Speech, supra note 37.
238 Ashcroft v. Free Speech Coal., 535 U.S. 234, 251 (2002).
239 R.A.V. v. City of St. Paul, 505 U.S. 377, 384–90 (1992).
240 United States v. Williams, 553 U.S. 285, 294 (2008).
241 CAL. CIV. CODE §§ 3273.65–.66 (West 2026).
242 Williams, 553 U.S. at 288–89.
243 Id. at 289.
244 Ashcroft v. Free Speech Coal., 535 U.S. 234, 240 (2002). The Court flagged but did not specifically consider the
constitutionality of a separate federal provision that banned modified images of identifiable minors. Id. at 242.
245 Id. at 246.
246 See id. at 250–51 (stating that “[v]irtual child pornography is not ‘intrinsically related’ to the sexual abuse of
children”).
247 See, e.g., United States v. Robinson, No. 8:25-CR-256-MSS-AEP, 2025 WL 2944439, at *3 (M.D. Fla. Oct. 16,
2025) (“This Court follows the burgeoning majority of cases on this issue and concludes that morphed child
pornography is not protected speech. The government’s interest in preventing reputational and emotional harm to actual
children depicted in such images justifies a categorical exclusion of morphed child pornography from the First
Amendment.”).
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reported CSAM, therefore, might consider whether the law triggers heightened scrutiny to the
extent it might lead to the removal of content that does not depict an actual minor.248
Laws Targeting Particular Harms
In comparison to laws that require platforms to restrict specifically identified types of content,
some state laws focus on specific types of harms to minors. These laws could also trigger strict
scrutiny to the extent the harms are caused by constitutionally protected content hosted by the
online platforms.249
One example of a harm-focused state law that has prompted First Amendment challenges is the
California Age-Appropriate Design Code Act (CAADCA).250 Among other provisions,251 the law
(1) required online services likely to be accessed by children to issue a report assessing whether
the service’s design could harm children, including by exposing them to harmful content;252 and
(2) prohibited such services from using children’s personal information in a way that “is
materially detrimental to the physical health, mental health, or well-being of a child,” or from
collecting unnecessary personal information unless it is in children’s best interests.253
In two separate decisions involving First Amendment challenges to the CAADCA, the Ninth
Circuit concluded both of these restrictions were likely unconstitutional.254 Looking first at the
CAADCA’s reporting requirements, the Ninth Circuit said the provisions triggered strict
scrutiny.255 The court held that the reports compelled protected speech, “requiring covered
businesses to opine on and mitigate the risk that children are exposed to harmful content
online.”256 As previously mentioned, the Supreme Court has held that that a law that compels
“individuals to speak a particular message” is content based and will likely trigger strict
scrutiny.257 The Ninth Circuit further concluded the law was likely to fail strict scrutiny, saying
the state “could have easily employed less restrictive means to accomplish its protective goals,
such as by (1) incentivizing companies to offer voluntary content filters or application blockers,
248 The California reporting and takedown requirements apply if (among other criteria) reporting users “reasonably
believe” they are depicted in the material, and the platform has a “reasonable basis to believe that the reported material”
is CSAM. See CAL. CIV. CODE § 3273.66 (West 2026).
249 In contrast, one Vermont law that focuses on specific harms seems to clarify that online content will not provide the
basis for liability. It states that covered businesses owe a duty to minors, defining the duty, in part, as “mean[ing] the
use of the” minors’ personal data “will not result in . . . reasonably foreseeable emotional distress,” but clarifying that
the content a minor views will not “establish emotional distress.” VT. STAT. ANN. tit. 9, § 2449c (2025). The next
section of the report discusses laws targeting design features not focused on online content. Infra “Laws Targeting
Platform Design.”
250 CAL. CIV. CODE §§ 1798.99.28–.40 (West 2026).
251 See infra “Privacy and Related Protections” and “Laws Requiring Other Types of Disclosures.” The law is also
discussed in CRS Legal Sidebar LSB11071, NetChoice v. Bonta and First Amendment Limits on Protecting Children
Online, by Peter J. Benson (2023).
252 CAL. CIV. CODE § 1798.99.31(a)(1)(B)(i) (West 2026).
253 Id. § 1798.99.31(b)(1).
254 NetChoice, LLC v. Bonta (Bonta I), 113 F.4th 1101, 1121 (9th Cir. 2024); Bonta II, 170 F.4th 744, 765 (9th Cir.
2026).
255 Bonta I, 113 F.4th at 1119.
256 Id. at 1118–19. The court said the speech was “disconnected from any economic transaction” and could not be
classified as commercial. Id. at 1119–20; see also id. at 1121 (“Strict scrutiny is warranted because the DPIA report
requirement (1) compels speech with a particular message about controversial issues; and (2) deputizes private actors
into censoring speech based on its content.” (citations omitted)).
257 Nat’l Inst. of Family & Life Advocs. v. Becerra, 585 U.S. 755, 766 (2018).
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(2) educating children and parents on the importance of using such tools, and (3) relying on
existing criminal laws that prohibit related unlawful conduct.”258
In a second decision, the Ninth Circuit weighed in on the CAADCA’s “data use provisions” that
limit how businesses “may use a child’s personal information” to avoid certain harms.259 The
court held that the provisions identifying the harms were likely unconstitutionally vague: the law
provided no guidance as to what conduct was materially detrimental to a child or what was in
children’s best interests.260 When a law is vague, it raises concerns that it will chill protected
speech, as the regulated entities will not be able to determine what is prohibited.261 The court said
the CAADCA provisions raised a “particularly high” “risk of subjective enforcement”—allowing
enforcers to discriminate against specific content or viewpoints—because the provisions had to
“be assessed as to any single child whose personal information is accessed by a covered online
practice.”262
While the CAADCA’s reporting requirements involved compelled speech, other state laws might
require platforms to restrict speech in order to prevent specific harms.263 For example, an
Arkansas law prohibited a “social media platform” from using a design that the platform “knows,
or should have known through the exercise of reasonable care, causes a user to: (1) Purchase a
controlled substance; (2) Develop an eating disorder; (3) Commit or attempt to commit suicide; or
(4) Develop or sustain an addiction to the social media platform.”264
In response to a First Amendment challenge, Arkansas argued its law was “not content based”
because liability was “based on the result caused by” the design, not the content displayed.265 A
trial court disagreed, saying the law could have applications that “are likely constitutional because
they involve platforms’ non-expressive conduct” as well as applications that are “more
constitutionally suspect.”266 On the latter front, the court concluded that the law could require
“platforms to change what speech they disseminate or how they prioritize that speech” to ensure
they are not promoting content associated with the prohibited harms.267 Accordingly, the court
applied strict scrutiny, given that “three of [the law’s] . . . prohibited results (drugs, eating
disorders, and suicide) impose content-based restrictions on platforms’ editorial discretion and on
users’ speech.”268
Ultimately, in considering whether the law was narrowly tailored under strict scrutiny review, the
Arkansas federal court held that the law was overinclusive because platforms would have to
censor protected speech that might harm “particularly susceptible users” even if the content
258 Bonta I, 113 F.4th at 1121.
259 Bonta II, 170 F.4th at 764.
260 Id. at 765–66.
261 Id. at 764.
262 Id. at 765.
263 E.g., S.C. CODE ANN. § 39-80-20 (2026) (requiring covered online services to “exercise reasonable care” to prevent
specified harms to minors, including compulsive usage and severe emotional distress). A lawsuit has been filed
challenging this law, but as of the date of publication of this report, the trial court has not yet weighed in. NetChoice v.
Wilson, No. 3:26-CV-00543 (D.S.C. Feb. 9, 2026).
264 ARK. CODE ANN. § 4-88-1502 (2025).
265 NetChoice v. Griffin, 812 F. Supp. 3d 905, 921 (W.D. Ark. 2025), appeal docketed, No. 26-1096 (8th Cir. Jan. 16,
2026).
266
Id. at 920.
267 Id. at 922.
268 Id. at 920.
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would not harm most users.269 The law was also underinclusive, in the court’s view, because it
regulated potentially harmful content only on social media platforms, and did not address
similarly harmful content communicated through other media.270 The court said this
“underinclusivity is especially concerning because” the law only limits minors’ “access to forums
in which to discuss—rather than merely view” speech.271 As such, the court concluded the law
was likely unconstitutional because it was not “narrowly tailored to achieving the State’s asserted
interests in protecting Arkansans from drug use, eating disorders, and suicide.”272
Considerations for Congress
A number of bills currently pending in Congress target specific online content or harms. For
example, the Digital Integrity in Democracy Act would require social media platforms to remove
“false election administration information” in certain circumstances.273 The Kids Online Safety
Act would prohibit platforms from facilitating the advertising of drugs and gambling to minors.274
The KIDS Act would require covered platforms to implement “reasonable policies, practices, and
procedures” to “address” specific harms to minors, including certain threats of physical violence,
sexual exploitation, and drug use.275 In addition, in 2025, Congress enacted the Tools to Address
Known Exploitation by Immobilizing Technological Deepfakes on Websites and Networks
(TAKE IT DOWN) Act, requiring covered platforms to remove nonconsensual intimate images at
the request of the depicted individual.276
A law that targets specific types of online content based on “the topic discussed or the idea or
message expressed” can trigger strict scrutiny—a standard that renders a law presumptively
unconstitutional.277 Laws targeting commercial speech generally receive intermediate scrutiny.278
Even if a law attempts to focus on the harm caused by online activity, a court might still apply
heightened scrutiny if the harm is caused by protected speech and would require platforms to
restrict that speech.279 If a law restricts or compels protected expression and a court applies strict
or intermediate scrutiny, the court will consider whether the government could achieve its interest
with a less speech-restrictive alternative. For example, courts have asked for evidence about the
effectiveness of opt-out provisions, incentives for voluntary private action, or educational
269 Id. at 922.
270 Id. at 923.
271 Id. at 924.
272 Id.
273 S. 840, 119th Cong. § 3(b) (2025).
274 S. 1748, 119th Cong. § 103(d) (2026); H.R. 6484, 119th Cong. § 4(d) (2026); see also KIDS Act, H.R. 7757, 119th
Cong. § 218 (2026) (incorporating the Kids Online Safety Act).
275 E.g., H.R. 7757 § 213(a); cf., e.g., Algorithm Accountability Act, S. 3193, 119th Cong. § 2 (2025) (providing that a
social media platform “shall exercise reasonable care . . . to prevent bodily injury or death” in certain circumstances).
276 Pub. L. No. 119-12, 139 Stat. 55 (2025); Killion, CRS Legal Sidebar LSB11314, The TAKE IT DOWN Act: A
Federal Law Prohibiting the Nonconsensual Publication of Intimate Images, supra note 3. Cf., e.g., Preventing
Rampant Online Technological Exploitation and Criminal Trafficking (PROTECT) Act of 2026, S. 5129, 119th Cong.
(2026) (imposing various requirements before a covered platform may upload or allow a user to upload a
“pornographic image”); Strengthening Transparency and Obligations to Protect Children Suffering from Abuse and
Mistreatment (STOP CSAM) Act of 2025, S. 1829, 119th Cong. § 4 (as reported, June 26, 2025) (making it unlawful
for interactive computer service providers to “intentionally host or store child pornography,” among other offenses).
277 Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015).
278 Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557, 566 (1980).
279 See, e.g., NetChoice v. Griffin, 812 F. Supp. 3d 905, 922 (W.D. Ark. 2025), appeal docketed, No. 26-1096 (8th Cir.
Jan. 16, 2026).
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campaigns.280 Thus, if Congress considers a law targeting specific online content or harms, it
might develop a legislative record, through committee hearings or a findings section, showing
why its approach is appropriately tailored to its regulatory interest.
There are limited categories of speech that Congress could regulate under a lower standard of
constitutional review.281 If Congress attempts to regulate unlawful or misleading commercial
speech,282 or certain categories of unprotected speech such as CSAM,283 the First Amendment
might not pose a barrier. At the same time, these historically unprotected categories of speech are
limited, and a heightened standard of constitutional review might apply if a law sweeps in speech
that is protected, either for adults or for everyone. In addition, the First Amendment might require
certain additional protections, such as showing that a platform was aware the speech was
unlawful or unprotected.284
Laws Targeting Platform Design
Some states have enacted laws that regulate how platforms design and implement features that
display content to users. State laws that apply to platform features run the gamut from restrictions
on content moderation practices,285 to prohibitions of features deemed addictive to users,286 to
requirements that platforms adopt protective or privacy-enhancing features.287 Laws in each of
these categories may include both detailed statutes that prescribe permissible and impermissible
design elements288 and generally applicable tort laws that impose liability for negligently
designed products.289 In some cases, courts have concluded that restricting an online platform’s
design restricts expression protected by the First Amendment.290
280 E.g., Bonta I, 113 F.4th 1101, 1121 (9th Cir. 2024).
281 See generally Killion, CRS In Focus IF11072, The First Amendment: Categories of Speech, supra note 37.
282 Cent. Hudson, 447 U.S. at 566.
283 United States v. Williams, 553 U.S. 285, 288–89 (2008).
284 See, e.g., Smith v. California, 361 U.S. 147, 152–54 (1959) (concluding that while obscenity is not protected, a state
could not impose strict liability on a bookseller carrying an obscene book in stock).
285 Moody v. NetChoice, LLC, 603 U.S. 707, 720 (2024) (“In 2021, Florida and Texas enacted statutes regulating
internet platforms, including the large social-media companies just mentioned. . . . [B]oth contain content-moderation
provisions, restricting covered platforms’ choices about whether and how to display user-generated content to the
public.”).
286 E.g., FLA. STAT. § 501.1736(1)(e) (2026); CAL. HEALTH & SAFETY CODE §§ 27000–27007 (West 2026); N.Y. GEN.
BUS. LAW § 1520 (McKinney 2026); NEB. REV. STAT. § 87-1304 (2026).
287 E.g., CAL. CIV. CODE §§ 1798.99.28–.40 (West 2026).
288 Bonta I, 113 F.4th 1101, 1109–11 (9th Cir. 2024) (describing the CAADCA, A.B. 2273, Gen. Assemb., 2022 Reg.
Sess. (2022) (codified as amended at CAL. CIV. CODE §§ 1798.99.28–.40 (West 2022))).
289 In re Soc. Media Adolescent Addiction/Pers. Inj. Prods. Liab. Litig., 702 F. Supp. 3d 809, 818 (N.D. Cal. 2023)
(describing design defect, failure to warn, and negligence claims alleged against Meta’s Facebook and Instagram,
Google’s YouTube, ByteDance’s TikTok, and Snapchat).
290 E.g., Moody, 603 U.S. at 740 (“When the platforms use their Standards and Guidelines to decide which third-party
content those feeds will display, or how the display will be ordered and organized, they are making expressive choices.
And because that is true, they receive First Amendment protection.”); In re Soc. Media Adolescent Addiction/Pers. Inj.
Prods. Liab. Litig., 702 F. Supp. 3d at 837 (“[T]he timing and clustering of notifications of defendants’ content to
increase addictive use is entitled to First Amendment protection. There is no dispute that the content of the notifications
themselves, such as awards, are speech. The Court conceives of no way to interpret plaintiffs’ claim with respect to the
frequency of the notifications that would not require defendants to change when and how much they publish speech.”
(citation omitted)).
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Content Moderation
Some state laws regulate online platforms’ choices about how to organize the information
published on their platforms.291 These laws may restrict platforms’ choices about how to moderate
the user content they publish, including decisions about which content to publish, delete,
promote, or suppress.292 Examples include both statutes explicitly governing how platforms may
moderate content293 and statutes establishing general tort causes of action.294 In the latter category,
some plaintiffs have alleged injuries in tort suits based on claims that content moderation
algorithms were negligently designed or deployed.295
In 2024, in the Moody v. NetChoice, LLC case discussed above,296 the Supreme Court heard
challenges to two content moderation laws enacted by Florida and Texas, and determined that
both laws implicated the First Amendment.297 Texas, for example, prohibited platforms from
“‘censor[ing]’ a user or a user’s expression based on viewpoint.”298 This prohibition, the Court
explained, limited when platforms could remove posts and ban users, among other moderation
decisions.299 The law restricted, in other words, “covered platforms’ choices about whether and
how to display user-generated content to the public.”300 When platforms choose how to display
user-generated content in curated content feeds, such as “Facebook’s News Feed and YouTube’s
homepage,” the Court held, their choices are protected expression.301 Just as a newspaper’s
editorial choices and a cable operator’s choices about which channels to carry are expression
protected by the First Amendment,302 the Moody Court reasoned that online platforms’ choices are
protected when they “decide which third-party content those feeds will display, or how the
display will be ordered and organized.”303
291 See Moody, 603 U.S. at 719–21 (describing content moderation regulations enacted by Florida and Texas). The prior
section, supra “Laws Targeting Particular Content or Harms,” discusses laws that target particular content hosted by
online platforms. This section focuses on laws targeting platform’s decisions about how to perform content moderation.
292 See Moody, 603 U.S. at 719–21.
293 See id. at 720 (“The statute restricts varied ways of ‘censor[ing]’ or otherwise disfavoring posts—including deleting,
altering, labeling, or deprioritizing them—based on their content or source. For example, the law prohibits a platform
from taking those actions against ‘a journalistic enterprise based on the content of its publication or broadcast.’”
(alteration in original) (citation omitted) (quoting FLA. STAT. § 501.2041(1)(b), (2)(j) (2024))).
294 See In re Soc. Media Adolescent Addiction/Pers. Inj. Prods. Liab. Litig., 702 F. Supp. 3d at 831 (alleging negligence
based on the “[u]se of algorithms to promote addictive engagement”).
295 See id.
296 Supra “Laws Targeting Particular Content.”
297 Moody v. NetChoice, LLC, 603 U.S. 707, 719–21 (2024).
298 Id. at 721 (quoting TEX. CIV. PRAC. & REM. CODE ANN. §§ 143A.002(a), .006 (West 2026)). In addition, the Florida
and Texas laws compelled platforms to provide notice of certain information and explanations about certain content
moderation decisions. Id. For a discussion of legal issues related to those aspects of the law, see “Laws Requiring
Disclosures.”
299 Moody, 603 U.S. at 721.
300 Id. at 720.
301 Id. at 740.
302 Id. at 728–30 (first citing Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241 (1974), and then Turner Broad. Sys.,
Inc. v. FCC, 512 U.S. 622 (1994)).
303 Id. at 740. The Moody Court recognized that, for the platforms at issue in the case, “prioritization of content” was
“achieved through the use of algorithms.” Id. at 734. Justice Barrett wrote separately to explain that, in her view, the
First Amendment protects editorial judgments made using “algorithm[s] [that] simply implement human beings’
inherently expressive choice[s].” Id. at 746 (Barrett, J., concurring). Justice Barrett cautioned, however, that the First
Amendment considerations could be different for different types of algorithms, and she questioned whether
(continued...)
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The Court declined to decide whether strict or intermediate scrutiny applied to the Texas and
Florida content moderation provisions under review.304 The Court was clear, however, that some
form of heightened First Amendment scrutiny applied.305 In the wake of Moody, lower courts
have held that platforms’ content moderation decisions are entitled to First Amendment
protection in a variety of contexts.306
One federal trial court, however, held that certain online platforms failed to show at the
preliminary injunction stage that their “personalized feeds” reflect protected expression.307 The
feeds at issue were designed to provide content that would be “engaging, or ‘interesting’ to
users.”308 The court found that the platforms were “not making any decisions about what content
will be ‘interesting,’ because they [were] merely relying on predictive modelling to assess what
users’ characteristics and history on the platform suggest will keep these same users engaged.”309
Because these content feeds did not “convey an expressive message or reflect human editorial
judgment,” the court held that regulating the feeds did not restrict the protected rights at issue in
Moody, and the platforms’ argument that limiting their use of personalized feeds violated their
First Amendment rights was not likely to succeed.310
For more information on platforms’ content moderation practices, see CRS Report R46662,
Social Media: Content Dissemination and Moderation Practices, by Clare Y. Cho and Ling Zhu
(2025).
Addictive Features
Some state laws restrict or prohibit platform features that legislatures have deemed “addictive” in
the sense that they are designed to increase the time users spend on a platform.311 These features
include
•
infinite scroll, which allows content to load continuously as a user scrolls through
the content;
incorporating artificial intelligence into algorithms could “attenuate the connection between content-moderation
actions” and “human beings’ constitutionally protected” choices. Id. (Barrett, J., concurring).
304 Id. at 740 (majority opinion) (“In the usual First Amendment case, we must decide whether to apply strict or
intermediate scrutiny. But here we need not. Even assuming the less stringent form of First Amendment review applies,
Texas’s law does not pass.”); see also supra “Laws Targeting Particular Content.”
305 Moody, 603 U.S. at 740.
306 See NetChoice v. Weiser, 808 F. Supp. 3d 1223, 1237–38 (D. Colo. 2025) (“But even assuming the relevant speech
at issue in this analysis is that in which social media platforms typically engage, the Court rejects Weiser’s sweeping
claim that ‘the entire relationship between the regulated platforms and its user is commercial.’ . . . [T]he Supreme Court
has made clear that content moderation is expressive speech in and of itself.”); Kennedy v. Meta Platforms, Inc., No.
3:24-cv-02869-WHO, 2024 WL 4031486, at *16–17 (N.D. Cal. Sep. 3, 2024) (“The Supreme Court recently held that
social media platforms’ decisions and actions to enforce their content moderation policies are protected by the First
Amendment. . . . Meta’s content moderation decisions to ‘deprioritize[]’ political content are protected by the First
Amendment.”); Patterson v. Meta Platforms, Inc., 244 A.D.3d 29, 38 (N.Y. App. Div. 2025) (“Thus, per Moody, the
social media defendants are entitled to First Amendment protection for third-party content recommended to the shooter
by algorithms.”).
307 Meta Platforms, Inc., v. Bonta, No. 5:25-cv-9789, 2026 WL 2260373, at *5 (N.D. Cal. Aug. 5, 2026).
308 Id.
309 Id.
310 Id. at *6–9.
311 See NetChoice, LLC v. Bonta, 152 F.4th 1002, 1009 (9th Cir. 2025) (explaining that some personalized content
feeds offered by platforms are designed “to maximize user time on the website and to encourage return visits” and that
California enacted new regulations because it “thinks personalized feeds work too well”).
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•
•
•
•
push notifications, which are alerts a platform sends to a user’s device to prompt
engagement with the platform;
“like” counts or other metrics that indicate or quantify how often users are
engaging with certain content;
autoplay, a function that causes videos or similar content to begin playing
without the user first clicking on the content or clicking on a play button; and
live streaming, which allows users to broadcast live content.312
State regulations of features deemed addictive or harmful have taken several forms. Some states
have enacted design codes that limit how platforms can use certain features.313 California, for
example, enacted a law called the Protecting Our Kids from Social Media Addiction Act314 that
prohibited platforms from providing minor users with “addictive feeds”315 and from sending
notifications to minor users during school or at night.316 The California law also required that
platforms include certain features in the default settings for minor accounts.317 By default, a
minor account must limit platform access to one hour each day, limit the account holder’s ability
to view like counts, provide a feed that does not recommend content based on personal
information, and be set to private mode.318 In private mode, “only users to whom the child is
connected on the addictive internet-based service or application may view or respond to content
posted by the child.”319
Other states have regulated different design features. Utah enacted a law that required platforms
to disable autoplay, endless scroll, and push notifications for minor users’ accounts.320 New York
required certain platforms to disable push notifications between 12:00 a.m. and 6:00 a.m. Eastern
time unless a minor has parental consent for nighttime notifications.321 Arkansas enacted a law
prohibiting “a social media platform from using ‘a design, algorithm, or feature that the social
media platform knows, or should have known through the exercise of reasonable care, causes a
user to . . . [d]evelop or sustain an addiction to the social media platform.’”322 Florida prohibited
platforms from maintaining accounts for children under fourteen years old, or maintaining
312 See FLA. STAT. § 501.1736(1)(e) (2026); CAL. HEALTH & SAFETY CODE §§ 27000–27007 (West 2026); N.Y. GEN.
BUS. LAW § 1520 (McKinney 2026); NEB. REV. STAT. § 87-1304 (2026). In addition, some state laws provide that
personalized content recommendations are addictive features. E.g., CAL. HEALTH & SAFETY CODE §§ 27000.5(a), 27001
(West 2026); N.Y. GEN. BUS. LAW §§ 1500–1508 (McKinney 2026). First Amendment issues related to content
moderation regulations are discussed earlier in this report. See supra “Content Moderation.”
313 See discussion supra note 312; S.C. CODE ANN. §§ 39-80-10 to -80 (2026); VT. STAT. ANN. tit. 9, §§ 2449a–2449j
(West 2026).
314 CAL. HEALTH & SAFETY CODE §§ 27000–27007 (West 2026).
315 Id. § 27000.5(a) (“‘Addictive feed’ means an internet website, online service, online application, or mobile
application, or a portion thereof, in which multiple pieces of media generated or shared by users are, either concurrently
or sequentially, recommended, selected, or prioritized for display to a user based, in whole or in part, on information
provided by the user, or otherwise associated with the user or the user’s device, unless [specified conditions are met].”).
316 Id. §§ 27001, 27002(a). Specifically, notifications are prohibited “between the hours of 12 a.m. and 6 a.m., in the
user’s local time zone, and between the hours of 8 a.m. and 3 p.m., from Monday through Friday from September
through May in the user’s local time zone.” Id. § 27002(a)(1). Both addictive feeds and covered notifications are
permitted for minor users when a platform obtains “verifiable parental consent.” Id. §§ 27001, 27002(a).
317 Id. § 27002(b).
318 Id.
319 Id. § 27002(b)(5).
320 UTAH CODE ANN. §§ 13-71-201 to -202 (West 2026).
321 N.Y. GEN. BUS. LAW § 1502 (McKinney 2026)
322 NetChoice v. Griffin, 812 F. Supp. 3d 905, 914 (W.D. Ark. 2025) (quoting ARK. CODE ANN. § 4-88-1502 (2026)),
appeal docketed, No. 26-1096 (8th Cir. Jan. 16, 2026).
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accounts for fourteen- or fifteen-year-olds without parental consent if the platform employs an
“addictive feature,” such as infinite scroll, push notifications, like counts, autoplay, or livestreaming.323 South Carolina required that platforms “exercise reasonable care in the . . . design
and operation of the covered online service including, but not limited to, covered design features,
to prevent [certain] harm to minors.”324
In addition, generally applicable state laws that do not expressly address online platforms can
apply to certain design features. Individuals have filed lawsuits alleging that features like infinite
scroll, push notifications, and autoplay violate various state tort laws.325 According to the
lawsuits, certain online platforms should be held liable for violating tort laws that generally bar
negligently or defectively designed consumer products.326
The various state laws addressing or potentially applicable to online platform design features—
and the allegedly addictive design features themselves—do not all affect speech in the same way.
As a result, courts have applied several different First Amendment analyses in cases challenging
laws that regulate addictive design features.327
The first question courts have often addressed in First Amendment challenges to laws regulating
design features is whether a particular design feature is expressive at all. Some courts have
identified features that, in their view, are not expressive and do not implicate First Amendment
rights.328 When evaluating Arkansas’s prohibition of features that “[d]evelop or sustain an
addiction” to a platform, for example, a federal trial court determined that “some [covered]
designs or features” did “not implicate platforms’ editorial discretion,” and regulating them
“impose[d] little, if any, burden on users’ speech.”329 The court gave infinite scroll as an
example.330 “[R]eplacing infinite scroll with click to load more or pagination would,” the court
reasoned, “still provide users easy access to the same amount of speech as infinite scroll.”331 The
court therefore concluded that the Arkansas prohibition was likely constitutional as applied to
infinite scroll.332
The same court found, however, that other features covered by the Arkansas law were expressive.
The court placed “social feedback features”—which allow users to like, share, or comment on a
social media post—in that category.333 Prohibiting social feedback features “because [they]
cause[] addiction in some users burdens the speech of the many other users for whom this
323 FLA. STAT. § 501.1736 (2024).
324 S.C. CODE ANN. § 39-80-20 (2026).
325 In re Soc. Media Adolescent Addiction/Pers. Inj. Prods. Liab. Litig., 702 F. Supp. 3d 809, 818 (N.D. Cal. 2023);
Ruling on Defendants’ Demurrer to Master Complaint and Three Short Form Complaints, Soc. Media Cases, No. JCCP
5255 (Cal. Sup. Ct. Oct. 13, 2023). For information about tort law, see CRS In Focus IF11291, Introduction to Tort
Law, by Andreas Kuersten (2023).
326 In re Soc. Media Adolescent Addiction/Pers. Inj. Prods. Liab. Litig., 702 F. Supp. 3d at 818.
327 Compare NetChoice, LLC v. Bonta, 152 F.4th 1002, 1014–18 (9th Cir. 2025) (applying strict scrutiny and
intermediate scrutiny to various design regulations), with In re Soc.Media Adolescent Addiction/Pers. Inj. Prods. Liab.
Litig., 702 F. Supp. 3d at 835–37 (concluding that holding platforms liable for their design of certain features did not
restrict the platforms’ speech).
328 NetChoice v. Griffin, 812 F. Supp. 3d 905, 925 (W.D. Ark. 2025), appeal docketed, No. 26-1096 (8th Cir. Jan. 16,
2026).
329 Id. at 914, 925.
330 Id. at 925.
331
Id.
332 Id.
333 Id.
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feedback is not addictive,” the court explained.334 Based on the application of Arkansas’s design
restrictions to these and other features the court considered expressive, the court subjected the law
to First Amendment scrutiny.335 It ultimately found that the law was likely unconstitutional.336
Courts ruling on First Amendment defenses in state tort suits have likewise concluded that some
allegedly addictive design features are expressive while others are not.337 A federal trial court
reviewing tort allegations about a host of platform features determined that several features could
be restricted without “requir[ing] that [the platforms] change how or what speech they
disseminate.”338 Holding platforms liable for failing to implement CSAM reporting protocols, for
example, did not, in that court’s view, implicate the platforms’ own First Amendment rights.339
The court found, however, that “the timing and clustering of notifications of [the platforms’ own]
content” was “entitled to First Amendment protection.”340 The court determined that the content
of the notifications was speech, and it saw “no way to interpret” the plaintiffs’ tort claims “with
respect to the frequency of the notifications that would not require [the platforms] to change when
and how much they publish speech.”341 The court therefore dismissed claims based on the timing
and clustering of notifications from the case.342
When design restrictions do affect expression, courts have applied strict scrutiny to some
restrictions and intermediate scrutiny to others.343 In a case about California’s Protecting Our
Kids from Social Media Addiction Act, for example, the Ninth Circuit considered as-applied First
Amendment challenges to the provision limiting like counts and the provision requiring that
minor accounts default to private mode.344 The court concluded that different standards of
scrutiny applied to the two provisions.345 Limiting access to the number of people who have liked
a social media post—but not to other information about a post—constituted a restriction of
“speech with a particular content,” according to the Ninth Circuit.346 The court therefore applied
strict scrutiny and found that California could have adopted a less restrictive regulation.347
California could have, for example, encouraged the use of technology that allows a user to
voluntarily filter out like-count information from a post.348 Accordingly, the Ninth Circuit
concluded that California’s regulation of like counts likely failed strict scrutiny and violated the
First Amendment.349
334 Id.
335 Id. at 926.
336 Id.
337 In re Soc. Media Adolescent Addiction/Pers. Inj. Prods. Liab. Litig., 702 F. Supp. 3d 809, 835–37 (N.D. Cal. 2023);
Ruling on Defendants’ Demurrer to Master Complaint and Three Short Form Complaints at 72–74, Soc. Media Cases,
No. JCCP 5255 (Cal. Super. Ct. Oct. 13, 2023).
338 In re Soc. Media Adolescent Addiction/Pers. Inj. Prods. Liab. Litig., 702 F. Supp. 3d at 835–37.
339 Id. at 836.
340 Id. at 837 (emphasis omitted).
341 Id.
342 Id.
343 See NetChoice, LLC v. Bonta, 152 F.4th 1002, 1014–18 (9th Cir. 2025) (applying strict scrutiny to one provision
and intermediate scrutiny to another provision of a California law).
344 Id. at 1014–18. The distinction between facial and as-applied challenges is discussed supra “Facial Challenges.”
345 152 F.4th at 1014–18.
346 Id. at 1016 (quoting Sorrell v. IMS Health Inc., 564 U.S. 552, 564 (2011)).
347
Id. at 1016–17.
348 Id. at 1017.
349 Id.
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In the same opinion, the court characterized California’s private mode requirement as content
neutral.350 The private mode provision required that platforms assign every minor user an account
for which the default mode prohibited other users from viewing or responding to the minor’s
content unless the other user’s account was already connected to the minor’s account.351 The court
held that this requirement restricted speech based on particular speakers because it limited who
minor users can communicate with.352 The limitation was, however, “agnostic as to content” in
the court’s view: the same speaker-based limitations applied to a post regardless of what any
particular post said.353 The court therefore applied intermediate scrutiny to the private mode
requirement.354 Finding that the requirement was sufficiently tailored to the protection of minors’
mental health, the Ninth Circuit held that the provision was likely constitutional.355
In another case, and as discussed earlier,356 the Eleventh Circuit analyzed a Florida law that
applied to platforms with “addictive features”357 and similarly held that the feature-based
definition was not content based.358 The court therefore applied “the more forgiving intermediate
scrutiny” standard when evaluating the law359 and concluded it was likely constitutional.360
A federal trial court evaluating Arkansas’s prohibition of “designs, algorithms, or features that
cause a user to” become addicted to a platform declined to decide whether strict or intermediate
scrutiny applied.361 The provision did not survive either level of scrutiny, the court explained, so it
did not need to determine which was most appropriate.362
Privacy and Related Protections
Some state laws regulate platform design to protect the privacy of minor users, as opposed to
prohibiting features a legislature deemed addictive. For example, in addition to the prohibitions
on purportedly addictive platform features discussed above,363 California’s Protecting Our Kids
from Social Media Addiction Act includes requirements directed to protecting users’ privacy such
as requiring the deletion of information used for age verification.364 Another previously discussed
California law—the CAADCA—imposes privacy and related restrictions on platforms that are
“likely to be accessed by children.”365 The CAADCA is a comprehensive design code intended to
350 Id.
351 CAL. HEALTH & SAFETY CODE § 27002(b)(5) (West 2026).
352 Bonta, 152 F.4th at 1017.
353 Id.
354 Id. at 1017–18.
355 Id.
356 See supra “Laws Defining Scope of Coverage.”
357 Comput. & Commc’ns Indus. Ass’n v. Uthmeier, No. 25-11881, 2025 WL 3458571, at *4–5 (11th Cir. Nov. 25,
2025).
358 Id.
359 Id. at *4.
360 Id. at *3.
361 NetChoice v. Griffin, 812 F. Supp. 3d 905, 924 (W.D. Ark. 2025), appeal docketed, No. 26-1096 (8th Cir. Jan. 16,
2026).
362 Id.
363 See supra “Addictive Features.”
364 CAL. HEALTH & SAFETY CODE § 27001(b) (West 2026).
365 CAL. CIV. CODE § 1798.99.31(a) (West 2026); see also supra “Laws Targeting Particular Harms” (discussing other
CAADCA provisions).
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“protect the ‘privacy, safety, and well-being of children’ when engaging with online products.”366
Among other protections, the CAADCA limits how platforms use data—for example, by
prohibiting the “use [of a child’s] personal information for any reason other than a reason for
which that personal information was collected, unless the business can demonstrate a compelling
reason that use of the personal information is in the best interests of children.”367 The Act also
prohibits the use of “dark patterns to lead or encourage children to provide personal
information . . . or to take any action that the business knows, or has reason to know, is materially
detrimental to the child’s physical health, mental health, or well-being.”368 As described by the
FTC, dark patterns are “design practices that trick or manipulate users into making choices they
would not otherwise have made and that may cause harm.”369
Following California’s enactment of the CAADCA, other states, including Maryland,370
Nebraska,371 South Carolina,372 and Vermont,373 enacted their own child-focused design codes.374
These laws are not identical to the CAADCA, but they each contain privacy-focused limitations
on how platforms may collect and use children’s personal data.375
Other states have also enacted privacy regulations that apply to online platforms. Texas, for
example, enacted HB 18, a law regulating certain “digital service provider[s],” including those
366 Bonta II, 170 F.4th 744, 751 (9th Cir. 2026) (quoting CAL. CIV. CODE § 1798.99.29 (West 2026)).
367 CAL. CIV. CODE § 1798.99.31(b)(4) (West 2026).
368 Id. § 1798.99.31(b)(7). California law defined a dark pattern as “a user interface designed or manipulated with the
substantial effect of subverting or impairing user autonomy, decisionmaking, or choice.” Id. § 1798.140(l).
369 FED. TRADE COMM’N, STAFF REPORT, BRINGING DARK PATTERNS TO LIGHT 2 (2022),
https://www.ftc.gov/system/files/ftc_gov/pdf/P214800%20Dark%20Patterns%20Report%209.14.2022%20%20FINAL.pdf [https://perma.cc/QWP7-4N3H]. For more information about dark patterns, see CRS In Focus
IF12246, What Hides in the Shadows: Deceptive Design of Dark Patterns, by Ling Zhu and Laurie Harris (2022).
370 MD. CODE ANN. COM. LAW §§ 14-4801 to -4813 (West 2026).
371 NEB. REV. STAT. §§ 87-1301 to -1309 (2026).
372 S.C. CODE ANN. §§ 39-80-10 to -80 (2026).
373 VT. STAT. ANN. tit. 9, §§ 2449a–2449j (2026).
374 New Jersey has enacted a child-focused design code that is scheduled to take effect in 2027. Assemb. 4015, 222d
Leg., Reg. Sess. (N.J. 2026) (enacted). In addition to these design codes, many states have general data privacy laws
that offer protections to consumers whose data may be collected by online platforms. E.g., CAL. CIV. CODE
§§ 1798.100–1798.199.100 (West 2026). For analysis of general data privacy laws, see CRS Report R48667,
Preemption and Privacy Law, by Chris D. Linebaugh (2025); CRS Report R45631, Data Protection Law: An
Overview, by Steve P. Mulligan and Chris D. Linebaugh (2019); CRS Legal Sidebar LSB11161, The American Privacy
Rights Act, by Chris D. Linebaugh et al. (2024).
375 See MD. CODE ANN. COM. LAW § 14-4806(a)(1) (West 2026) (“A covered entity that provides an online product that
is accessed or reasonably likely to be accessed by children may not . . . [p]rocess the personal data of a child in a way
that is inconsistent with the best interests of children reasonably likely to access the online product[.]”); id. § 144806(a)(4) (“A covered entity that provides an online product that is accessed or reasonably likely to be accessed by
children may not . . . [p]rocess the personal data of a child end user for any reason other than a reason for which that
personal data was collected . . .”); S.C. CODE ANN. § 39-80-40(A) (2026) (“Covered online services shall only collect,
use, or share the minimum amount of a minor’s personal data necessary to provide the specific elements of the covered
online service with which a minor has knowingly engaged. Such personal data may not be used for reasons other than
those for which it was collected. Minors’ personal data collected for age verification or estimation cannot be used for
other purposes and must be deleted after use.”); VT. STAT. ANN. tit. 9, § 2449f(a) (2026) (“A covered business shall
not . . . collect, sell, share, or retain any personal data of a covered minor that is not necessary to provide an online
service, product, or feature with which the covered minor is actively and knowingly engaged[.]”); NEB. REV. STAT.
§ 87-1305(1) (2026) (“A covered online service shall only collect and use the minimum amount of a covered minor’s
personal data necessary to provide the specific elements of an online service with which the covered minor has
knowingly engaged. Such personal data shall not be used for reasons other than those for which it was collected.”).
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that “allow[] users to socially interact with other users.”376 Texas’s HB 18 limits when these
platforms may collect and use data about minor users.377
Limiting how a company may use data it has collected—including customers’ personal
information—can raise First Amendment issues.378 “An individual’s right to speak is implicated,”
the Supreme Court has explained, “when information he or she possesses is subjected to
‘restraints on the way in which the information might be used’ or disseminated.”379 Based on that
reasoning, a number of lower courts have held that data restrictions, even privacy-enhancing
restrictions, are subject to First Amendment scrutiny.380 For instance, a federal trial court hearing
a challenge to data use and dark patterns restrictions in Maryland’s Age-Appropriate Design Code
Act determined that the challenger in that case adequately alleged that the privacy restrictions
implicated First Amendment rights.381
The specific First Amendment scrutiny that courts have applied to data use restrictions has varied,
in part because there is some ambiguity in the relevant precedent about what level of scrutiny to
apply to restrictions on the use of information. In 2011, the Supreme Court invalidated a Vermont
law that “enact[ed] content-and speaker-based restrictions on the sale, disclosure, and use of” data
about the prescribing history of specific physicians without determining precisely which level of
scrutiny the First Amendment required.382 Although the Court made clear that it was applying
“heightened judicial scrutiny,” it saw no need to further specify.383 It held instead that the Vermont
law was invalid regardless of “whether a special commercial speech inquiry”—that is, Central
Hudson intermediate scrutiny384—“or a stricter form of judicial scrutiny is applied.”385
376 TEX. BUS. & COM. CODE ANN. § 509.002(a) (West 2026).
377 Id. § 509.052.
378 See, e.g., U.S. W., Inc. v. FCC, 182 F.3d 1224, 1231–32 (10th Cir. 1999) (holding that a regulation restricting the
use and disclosure of and access to customer proprietary network information affects speech); ACA Connects v. Frey,
471 F. Supp. 3d 318, 327 (D. Me. 2020) (“The Privacy Statute restricts ISPs’ ability to use, disclose, sell, and provide
access to customers’ personal information. . . . I, therefore, proceed from the presumption that Plaintiffs’ marketing of
customer data, like the prescriber-identifying data in Sorrell, is sheltered by the First Amendment.”); Boelter v.
Advance Mag. Publishers Inc., 210 F. Supp. 3d 579, 597 (S.D.N.Y. 2016) (“Whether the sale of data to third parties for
targeted solicitation of consumers is commercial speech appears to be an open question in the Second Circuit. We
conclude . . . that the speech at issue warrants qualified constitutional protection.” (citation omitted)); Boelter v. Hearst
Commc’ns, Inc., 192 F. Supp. 3d 427, 445 (S.D.N.Y. 2016) (holding that a law regulates speech because it “restricts
the sellers of certain products from disclosing the identity of individuals who purchase those products”).
379 Sorrell v. IMS Health Inc., 564 U.S. 552, 568 (2011) (quoting Seattle Times Co. v. Rhinehart, 467 U.S. 20, 32
(1984)).
380 See, e.g., Advance Mag. Publishers, 210 F. Supp. 3d at 597 (“The disclosure of [customer information about
magazine subscriptions] to data miners and the sale of [the same information] to organizations that use it for solicitation
purposes is speech ‘related solely to the economic interests of the speaker and its audience.’” (quoting Cent. Hudson
Gas & Elec. Corp. v. Pub. Serv. Comm'n 447 U.S. 557, 561 (1980)).
381 NetChoice v. Brown, No. 25-0322, 2025 WL 3267786, at *15 (D. Md. Nov. 24, 2025). The court’s decision, which
addressed a motion to dismiss, came at an early stage in the case. Id. at *1. As a result, the court did not think it was
necessary to “determine which specific degree of First Amendment scrutiny applies.” Id. at *14. For the purpose of
deciding a motion to dismiss, the court deemed it sufficient to determine “whether NetChoice has sufficiently alleged
that [Maryland’s law] at least burdens protected speech or expression such that First Amendment scrutiny applies.” Id.
382 Sorrell, 564 U.S at 563–64, 580.
383
Id. at 565, 571.
384 See supra “Laws Targeting Advertisements and Commercial Speech.”
385 Sorrell, 564 U.S at 571.
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In some cases involving state laws that restrict data use by online platforms, courts have applied
strict scrutiny after determining that a restriction on data use is content based.386 For example, the
Ninth Circuit applied strict scrutiny to a law that prohibited “only a single category” of online
services from “disseminat[ing] . . . one type of [personal information]: ‘date of birth or age
information.’”387 The court ultimately concluded that the law was unconstitutional.388
When data use restrictions are content neutral or affect only commercial speech, however, other
courts have applied intermediate scrutiny.389 A federal trial court reviewed and upheld Illinois’s
Biometric Information Privacy Act (BIPA) under intermediate scrutiny,390 determining that the
categories of information regulated under BIPA—such as “biometric identifier[s]” and “biometric
information”—did not “relate to the communicative content of th[e] information.”391 The court
concluded that BIPA survived intermediate scrutiny because Illinois had a substantial interest in
“protecting [consumers’] privacy in and control over their biometric data” and “allowing a
company to collect . . . biometric data only after the consumer can make an informed choice”
directly advances that interest.392 In other cases, courts have invalidated data use restrictions
under intermediate scrutiny when they are not sufficiently tailored or have only speculative
connections to substantial state interests.393
In addition to strict and intermediate scrutiny, the U.S. District Court for the District of New
Jersey has employed a distinct balancing test to evaluate First Amendment challenges to privacy
regulations. In its view, “the Supreme Court has outlined three specific factors that a court must
consider in balancing the right of privacy against the right of free speech.”394 Those factors are
“whether the information is lawfully obtained and is of public significance”; “whether the law in
question serves ‘a need to further a state interest of the highest order’”; and “whether the statute
serves ‘the significant interests’ which the state purports to advance and is not underinclusive.”395
Applying this standard, the court denied a motion to dismiss, arguing that the law at issue was not
unconstitutional on its face.396
Some courts have held that certain privacy restrictions that focus only on collecting
information—as opposed to selling, sharing, or otherwise communicating the information—are
386 See, e.g., Jackson v. Whitepages, Inc., 798 F. Supp. 3d 583, 596 (N.D. W. Va. 2025), appeal docketed, No. 25-2122
(4th Cir. Sep. 19, 2025).
387 IMDb.com Inc. v. Becerra, 962 F.3d 1111, 1120 (9th Cir. 2020) (quoting CAL. CIV. CODE § 1798.83.5(b) (West
2024)).
388 Id. at 1127.
389 See Nat’l Cable & Telecomms. Ass’n v. FCC, 555 F.3d 996, 1001–02 (D.C. Cir. 2009); Sosa v. Onfido, Inc., 600 F.
Supp. 3d 859, 879–84 (N.D. Ill. 2022); Boelter v. Hearst Commc’ns, Inc., 192 F. Supp. 3d 427, 447–51 (S.D.N.Y.
2016).
390 Sosa, 600 F. Supp. 3d at 879–84.
391 Id. at 880.
392 Id. at 882–83.
393 U.S. W., Inc. v. FCC, 182 F.3d 1224, 1231–39 (10th Cir. 1999) (applying intermediate scrutiny to a regulation
restricting the use and disclosure of customer proprietary network information collected by telecommunications carriers
and holding that the restrictions violate the First Amendment); DoorDash, Inc. v. City of New York, 789 F. Supp. 3d
337, 356–59 (S.D.N.Y. 2025).
394 Atlas Data Priv. Corp. v. We Inform, LLC, 758 F. Supp. 3d 322, 336 (D.N.J. 2024), appeal docketed, No. 25-1555
(3d Cir. Mar. 31, 2025).
395 Id. at 336–37 (quoting Fla. Star v. B.J.F., 491 U.S. 524, 536–40 (1989)).
396 Id. at 341–42.
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not subject to heightened First Amendment scrutiny.397 A federal district court deciding a
challenge to Texas’s HB 18 reasoned that the challengers did not show how “prohibiting the
collection of [personal information] and geolocation data” placed “any burden on speech.”398 The
Seventh Circuit drew a similar conclusion about the federal Driver’s Privacy Protection Act
(DPPA).399 That court treated the DPPA’s “prohibition on knowingly obtaining an individual’s
personal information from motor vehicle records” as subject to “rational basis review” because it
was “a limitation only on access to information.”400 Both courts upheld the provisions that did not
burden speech against First Amendment challenges.401
Finally, as discussed previously, the Ninth Circuit held that the CAADCA’s data use and dark
patterns restrictions were invalid because the provisions were unconstitutionally vague.402
Considerations for Congress
In recent Congresses, some Members have introduced bills that propose design regulations on
online platforms.403 The KIDS Act from the 119th Congress, for example, would require that
covered platforms provide minors with certain “easy-to-use safeguards,” apply certain default
settings to minors’ accounts, and provide certain tools for parents of minors.404 Other proposals
have addressed content moderation,405 privacy protections,406 or prohibitions of dark patterns.407
As discussed, courts have subjected laws that regulate platform design features to different levels
of First Amendment scrutiny depending on the features at issue and the way the regulation affects
speech. Design feature regulations are most likely to be upheld against a First Amendment
challenge when they do not restrict expressive choices.408 One court concluded that prohibiting
infinite scroll fell into this category because “replacing infinite scroll with click to load more or
397 In other cases, courts have held that some restrictions on collecting information can still raise First Amendment
issues. Courts have determined, for example, that certain limits on accessing information can hamper the creation of
speech and applied First Amendment scrutiny. W. Watersheds Project v. Michael, 869 F.3d 1189, 1195–96 (10th Cir.
2017) (“We conclude that plaintiffs’ collection of resource data constitutes the protected creation of speech.”); see also
Stanley v. Georgia, 394 U.S. 557, 564 (1969) (“[T]he Constitution protects the right to receive information and
ideas.”).
398 Computer & Commc’ns Indus. Ass’n v. Paxton, 747 F. Supp. 3d 1011, 1035 (W.D. Tex. 2024), aff’d on other
grounds, No. 24-50721, 2026 WL 2130729 (5th Cir. July 24, 2026).
399 18 U.S.C. §§ 2721–2725; Dahlstrom v. Sun-Times Media, LLC, 777 F.3d 937, 949 (7th Cir. 2015).
400 Dahlstrom, 777 F.3d at 947–49. Under the rational basis standard, a law is constitutional so long as there is a
rational relationship between a legitimate legislative purpose and the means employed to achieve that purpose. N.Y.
State Rest. Ass’n v. N.Y.C. Bd. of Health, 556 F.3d 114, 134 (2d Cir. 2009).
401 Dahlstrom, 777 F.3d at 949; Paxton, 747 F. Supp. 3d at 1036.
402 Bonta II, 170 F.4th 744, 764–67 (9th Cir. 2026); see supra “Laws Targeting Particular Content.”
403 See, e.g., KIDS Act, H.R. 7757, 119th Cong. § 214 (2026).
404 Id.
405 See Disincentivizing Internet Service Censorship of Online Users and Restrictions on Speech and Expression
(DISCOURSE) Act, S. 921, 118th Cong. (2023); Nudging Users to Drive Good Experiences on Social Media
(NUDGE) Act, S. 3608, 117th Cong. (2022).
406 Children and Teens’ Online Privacy Protection Act, S. 836, 119th Cong. (2026).
407 Kids Online Safety Act, S. 1748, 119th Cong. (2026). For more information about the Kids Online Safety Act, see
CRS In Focus IF12730, Kids Online Safety Act, by Clare Y. Cho (2026).
408 NetChoice v. Griffin, 812 F. Supp. 3d 905, 920 (W.D. Ark. 2025) (“[T]he Court can conceive of some applications
of § 1502 that are likely constitutional because they involve platforms’ non-expressive conduct and impose minimal
incidental burdens on speech. Such applications may include: appearance-altering filters; data collection practices;
display features unrelated to the ordering of content, e.g., infinite scroll, autoplay; and difficult to access parental
controls or ‘delete account’ buttons.”).
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pagination would still provide users easy access to the same amount of speech as infinite
scroll.”409
Assuming they implicate the First Amendment, design restrictions could be reviewed under
intermediate scrutiny if they are content neutral or restrict only commercial speech.410 For
example, the Ninth Circuit applied intermediate scrutiny and upheld California’s requirement that
minor accounts default to a private mode with limits on who the minor can communicate with.411
Restrictions on design features are comparatively less likely to be upheld when they restrict
expression and make content-based distinctions.412 The Ninth Circuit held that California’s
restriction on like counts fell into this category and held that the law was likely unconstitutional
under strict scrutiny.413
Congress might consider ways to focus regulations on particular design elements that are less
likely to burden speech than others. If design restrictions make content-based distinctions,
Congress might consider ways to tailor the restrictions to avoid unnecessarily burdening speech
and develop a legislative record showing how the law is narrowly tailored.414
Laws Requiring Disclosures
Some states have adopted transparency measures, requiring online platforms to disclose their
terms of service or practices relating to how they moderate user content.415 Some laws have
required platforms to share information about algorithmic recommendation systems416 or the
collection and use of minors’ personal data.417 Some disclosure requirements overlap with laws
targeting how companies design their platforms.418 An Arkansas law, for example, required social
media platforms to develop a “dashboard to allow a parent of a minor user to view and
understand his or her child’s use habits.”419 Some of these disclosures may require value
judgments: for example, a Minnesota law required covered social media platforms to explain how
409 Id. at 925.
410 See NetChoice, LLC v. Bonta, 152 F.4th 1002, 1017 (9th Cir. 2025) (“The private-mode default is agnostic as to
content and therefore need only survive intermediate scrutiny.”).
411 Id.
412
Id. at 1016 (“Like counts are ‘speech with a particular content.’ The Act prohibits platforms from describing posts
based on ‘the idea or message expressed’ by the description. (first quoting Sorrell v. IMS Health Inc., 564 U.S. 552,
564 (2011), and then Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015))).
413 Id. at 1017.
414 Cf. id. at 1017 (“[California’s private mode requirement] is not underinclusive enough to raise ‘doubts about
whether the government is in fact pursuing’ the asserted interest. . . . Neither is the provision so overinclusive to make
it ‘substantially broader than necessary’ to achieve California’s interest.” (first quoting Williams-Yulee v. Fla. B., 575
U.S. 433, 448 (2015), and then TikTok Inc. v. Garland, 604 U.S. 56, 77 (2025)).
415 E.g., CAL. BUS. & PROF. CODE §§ 22676–22677 (West 2026); FLA. STAT. § 501.2041(2)(a), (c) (2025); N.Y. GEN.
BUS. LAW § 1101 (McKinney 2026); TEX. BUS. & COM. CODE ANN. §§ 120.051–.053 (West 2025).
416 E.g., VT. STAT. ANN. tit. 9, § 2449e (2025); see also, e.g., X.AI LLC v. Bonta, No. 25-12295, 2026 WL 626926, at
*1 (C.D. Cal. Mar. 4, 2026) (denying motion for a preliminary injunction against a California law requiring generative
artificial intelligence systems to disclose training data), appeal docketed, No. 26-1591 (9th Cir. Mar. 17, 2026).
417
E.g., UTAH CODE ANN. § 13-71-202(3) (West 2024).
418 Supra “Laws Targeting Platform Design.”
419 ARK. CODE ANN. § 4-88-1402(4)(A) (2026).
Congressional Research Service
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First Amendment Challenges to Regulation of Social Media
they limit “excessive account interactions.”420 As discussed above,421 the CAADCA required
covered businesse
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