11th Circuit renews scrutiny over Florida’s social media ban for minors

JACKSONVILLE, Fla. (CN) — An 11th Circuit panel tackled two cases involving the country’s biggest technology companies on Tuesday in the continuing legal battle over a Florida law restricting social media use for minors.

The appeals stem from HB 3, which bans certain social media accounts for children under 14 and requires parental permission for those 14 to 15 years old.

The law was one of the major priorities of the 2024 legislative session and received support from Republicans and Democrats alike, worried about the potentially harmful effects of social media use among teens such as depression, anxiety and bullying.

Tech industry groups NetChoice and the Computer and Communications Industry Association filed a First Amendment lawsuit against the Florida Attorney General’s Office, contending parents should have the freedom to restrict their children’s internet use. The groups, whose members include Meta, Snap and Google, also expressed dismay the broad language of the bill disregards privacy rights of adults.

Chief U.S. District Judge Mark Walker of the Northern District of Florida initially threw out the case, but the Barack Obama appointee later granted a preliminary injunction after an amended complaint. A divided 11th Circuit panel lifted the injunction in November and fast-tracked the current appeal.

In the interim, Florida Attorney General James Uthmeier targeted Snap with a lawsuit of his own in state court. The tech giant successfully convinced a judge to move the case to federal court, citing its federal advertisement contracts, prompting an appeal by the attorney general.

Both cases found their way to a three-judge panel on Tuesday.

Specific criteria

“In recent years, social media use by young teens and adolescents has skyrocketed, and there’s been a corresponding increase in very severe mental health consequences,” Jeffrey DeSousa, representing the state, told the judges. “So, that was the problem that Florida’s legislature was trying to tackle with HB 3 and it did it in overwhelmingly bipartisan fashion.”

DeSousa said the law is not an “outright ban.”

“Children can continue to use social media if a number of things happen,” he said, referencing the law’s parameters.

HB 3 does not mention specific platforms but provides four criteria to determine if the regulations apply, including uploading capabilities, algorithms analyzing user data, proof at least 10% of users are minors using the platform more than two hours a day and having at least one “addictive feature,” such as infinite scrolling, push notifications and autoplay videos.

“So, if they stop using the addictive features, our law does not apply to these platforms, and all of the speech is permissible,” DeSousa said. “So the reason that this is a content-neutral regulation is because our coverage formula has nothing at all to do with the kinds of speech that you will find on these platforms.”

U.S. Circuit Court Judge Robert Luck pushed back against the attorney’s premise.

“Social media sites that are at 9% are perfectly fine, yet have the same harms,” said Luck, a Donald Trump appointee. The judge referenced part of DeSousa’s brief that framed the law as simply a prohibition against creating an account.

“So you can do all the other stuff that we believe to be harmful to you, as long as you don’t enter it into an account agreement with the minors,” Luck said. “That seems to be a big exception, which I know you use to show how narrow-tailored it is, but doesn’t seem to meet what you say is the problem, right?”

“If tomorrow all the social media sites that your friends on the other side represent decided, okay, no account holders anymore for those 16 and under, but we’re going to do everything else the same,” the judge continued. “That doesn’t attack the problem, which is how you started off here, which is social media and its addictive features are causing problems to teenagers.”

DeSousa countered that accounts allow such addictive features like push notifications.

Luck pointed to other features of applications and websites, such as cookies.

“They collect information that have nothing to do with account holders,” he said. “I mean, I don’t belong to any social media sites and yet, somehow, I get ads that are tailored to things that I like.”

Erin Murphy, representing the tech industry groups, painted HB 3 as just another example of state governments attempting to stifle minors’ free speech.

“These kinds of laws are nothing new,” she said. “Efforts to restrict access to speech have cropped up over the decades, virtually any time a new medium captures the attention of minors, be it movies, television, comic books, or games. And while Florida’s law may differ in its particulars from similar laws that have been enjoined throughout the country over the past few years, none of those details changes the bottom line that this law violates the First Amendment.”

Advertising agreements

In the Florida attorney general’s lawsuit against Snap, attorney Clark Hildabrand sidestepped the First Amendment issues and asked the appellate panel to send the case back to the state court.

Snap had argued it provided the Department of Homeland Security and the Food and Drug Administration an essential ad campaign aimed at teenagers to combat human trafficking and tobacco use sanctioned by the federal government, but the attorney general maintains the advertising contract doesn’t amount to “an unusually close relationship.”

Luck asked if the federal agencies required a social media campaign to address those issues.

“I don’t think that they require these specific campaigns to be conducted for 13- and 17-year-olds,” Hildabrand answered. “They certainly don’t require it to be done with the addictive features that Snap is using.”

Katherine Wellington, representing Snap, said the agreement between Snap and the federal government is a more-than-casual contractual relationship between the two entities.

“What the federal government did and said is we want Snap to do research on what kids and teenagers know right now and we want to use that research to create a custom tool,” she said, describing a quiz created by the company to educate teens on the warning signs of human trafficking. “I don’t think you can dispute this as a basic governmental task that Snap is assisting with.”

Wellington also characterized the attorney general’s lawsuit as content-based discrimination.

“So what the state is really trying to do here is block teenagers from sharing their opinion on these social media platforms and on Snapchat,” she said.

“I just don’t think I understand why it’s content based,” U.S. Circuit Court Judge Kevin Newsom, a Trump appointee, said.

“If you had a law that says we aren’t going to allow teenagers to submit op-eds to newspapers, because those are opinions by teenagers, I think you would view that as a content-based law,” Wellington responded.

“Do you mean, by your newspaper analogy, that teen speech is a content category?” Newsom said.

“I think teens talking about their everyday lives is a content category,” Wellington answered. “We think that is unique. I don’t think you can go onto Snapchat and get the same content that you’re going to get on a traditional news site or a traditional sports site.”

U.S. Circuit Court Judge Gerald Tjoflat, a Gerald Ford appointee, joined Newsom and Luck on the panel.

Although the judges did not indicate when they will reach a decision in the cases, Florida’s attorney general recently renewed his calls to prosecute tech companies violating HB 3, promising lawsuits in the next 30 days.

“The time for negotiations is over,” Uthmeier posted on X.

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