Here are a few concise passages from the court’s lengthy ruling in Computer & Communications Industry Association v. Uthmeier, issued today by Judge Kevin Newsom and joined by Judges Robert Luck and Gerald Bard Tjoflat:
The most urgent question concerns how social-media use impacts minors and in what ways. Florida contends that social-media companies embed “addictive features” such as push notifications, auto-play, and endless scrolling to make their platforms habit-forming. The state describes these elements as “psychological hooks” that overstimulate the brain’s reward circuitry and foster compulsive use. It argues that children, whose brains are still developing, are especially vulnerable to these features, and that they contribute to a pattern of compulsive or uncontrollable use that could fuel a youth mental-health crisis. The state notes sleep disturbances, attention problems, and feelings of exclusion among children, which heighten risks of depression, anxiety, and neurotic tendencies.
To shield youngsters from social-media addiction and its downstream effects, Florida enacted HB3, which imposes age-related restrictions on platforms that employ addictive features. Specifically, HB3 forbids anyone under 14 from creating an account, and requires parental consent for those under 16 before they can do so….
We conclude that HB3 is likely compatible with the First Amendment because it presents a content-neutral regulation of speech that passes intermediate scrutiny….
The court treated HB3 as a speech restriction and thus as something that engages First Amendment concerns:
Florida argues that HB3 “regulates product design, not children’s speech,” and accordingly doesn’t reach the First Amendment. In particular, the state maintains that HB3 bars only the creation of accounts, not broad access to social media, and thus governs only “commercial transactions”—the platform’s ability to “enter into a contract” with minors of a certain age.
Even accepting that framing, it seems clear to us that HB3 “disproportionately burdens” CCIA’s members’ “protected First Amendment activities”—namely, the platforms’ ability to curate and present others’ speech to their users. In particular, HB3 hampers platforms’ capacity to communicate with their users by requiring them (1) to bar minors under 14 from creating or maintaining accounts and (2) to obtain parental consent before communicating with 14- and 15-year-olds.
Yet the court deemed HB3 to be content-neutral:
HB3 is facially content-neutral: It regulates social-media platforms based on their functional capabilities and features rather than on the content they convey. The law neither references what is said on any platform nor makes distinctions based on that content. In other words, HB3 applies to platforms without regard to the topics discussed or the ideas expressed. Truth Social would be affected as readily as Instagram if (1) a portion of minors under 16 spend on average at least two hours daily on it; (2) it employs infinite scrolling, push notifications, auto-play, livestreaming, or displays user-engagement metrics; and (3) it selects content algorithmically for users. Furthermore, neither platform nor user can avoid or mitigate HB3’s effects by altering the substance of any post.
HB3’s justification is likewise content-neutral: to protect children from social-media addiction and related mental-health harms. That goal is unrelated to the substance of expression on any given platform, and it does not express disagreement with the message such speech conveys. …
CCIA argues that HB3 is content-based because it targets “social” speech, asserting that the law targets websites “based on the social subject matter of the material they disseminate.” Yet the “social” aspect of speech is a function of how it is conveyed, not of what is being said. Simply put, “social” speech refers to exchanges among users on social-media platforms, irrespective of the topic, idea, or message involved. People can engage in so-called “social” discourse about anything—from profound matters like religion and philosophy to lighthearted fare like celebrity gossip or cat videos….
And the court held that HB3 likely clears intermediate scrutiny applicable to content-neutral restrictions because the law advances important governmental interests unrelated to suppressing speech and does not burden more speech than necessary to achieve those ends:
CCIA does not challenge that HB3 serves an important state objective; it concedes that protecting minors is a commendable aim. Even so, it contends that the statute fails intermediate scrutiny’s first element because Florida’s interest is plainly tied to suppressing expression. In particular, CCIA emphasizes that HB3 targets only websites, not other media that disseminate speech—such as books that end with cliffhangers. Florida singles out social-media platforms because they host speech that Florida distrusts.
CCIA’s argument does not necessarily follow. It would hold only if websites possess an inherent expressive value that differs from the expressive value found in books. But both books and websites convey content across the spectrum of expressive value; they simply do so in different formats. Absent a restriction on the substance of topics, ideas, or messages, HB3’s targeting of websites is not, as CCIA contends, plainly connected to the suppression of expression. …
HB3 is also likely suitably tailored to advance Florida’s interest in protecting minors. In particular, the law does not burden substantially more speech than necessary because it (1) tunes its restrictions by age, (2) limits itself to the creation—not merely the use—of accounts by minors, (3) targets only platforms already shown to induce heavy use by children, and (4) applies only to platforms that combine algorithms with one of several addictive features.
First, HB3 sets age-based limits. It bars under-14s from creating accounts and requires parental consent for 14- and 15-year-olds, while imposing no restrictions on those aged 16 and older. The statute thus focuses on younger minors and acknowledges a nuanced spectrum among those covered—distinguishing, for example, 13-year-olds from 14- and 15-year-olds, who are on the cusp of high school, and from those 16 and up, who are approaching adulthood.
Second, even among the covered group, HB3 merely restricts account creation rather than overall access to platforms. Creating a social-media account is a commercial act—a business transaction. A minor may still use the platforms by means of a parent’s account or by accessing the services without an account.
Third, HB3 targets only those platforms on which many minors already rely. A platform falls within HB3’s reach only if at least 10% of its daily users under 16 spend an average of two hours or more per day on it. Together with its other constraints, HB3’s tailoring falls within the permissible range of solutions that intermediate scrutiny allows.
Fourth, HB3 operates more as a conditional restriction than a flat ban—specifically, a restriction on the use of addictive features and algorithms. The law applies only to platforms that blend algorithms with addictive features and that keep a substantial share of minors on the site for at least two hours daily. Platforms that avoid algorithms, avoid addictive features, or stay below the time threshold are exempt.
Whether HB3 represents the best policy choice is another matter. But under intermediate scrutiny, governments have latitude to design regulations that address content-neutral interests. Therefore, Florida may legitimately choose the precise boundaries it has drawn—many of which, of course, narrow the law’s reach. Thus, for example, Florida could validly bar under-14s rather than under-16s from creating social-media accounts, require parental consent for 16-year-olds rather than for those under 18, focus on platforms used by a substantial segment of children for more than two hours daily, and concentrate on sites that employ both algorithms and addictive features rather than only one of those factors….
Judge Newsom also authored an additional, noteworthy separate opinion addressing as-applied challenges and intermediate scrutiny; readers may wish to review that opinion along with the panel’s discussion of overbreadth challenges and related issues.
