​
As the Senate prepares to vote Tuesday on a broadly supported package intended to protect kids online, opponents are gearing up to lobby hard in the House to forestall further action and to pursue challenges on constitutional grounds.

The enthusiasm for passing stricter measures to protect kids isn’t yet seen in the House, but popularity in the Senate was clear from an 86-1 vote to end debate on the legislative vehicle for the two-bill package and move it toward a vote on passage. Backers say the package is narrowly tailored and intended to curb social media companies’ conduct rather than curtail content, insulating them from First Amendment challenges.

The package includes a measure, sponsored by Sen. Richard Blumenthal, D-Conn., and co-sponsored by Sen. Marsha Blackburn, R-Tenn., that would require tech companies to design online platforms in such a way as to prevent or mitigate harms to users, including sexual exploitation and online bullying. It has 70 other co-sponsors.

Before the Senate voted to invoke cloture, Blumenthal said the legislation was “constitutionally bulletproof.” 

The other included bill, sponsored by Sen. Edward J. Markey, D-Mass., and co-sponsored by Sen. Bill Cassidy, R-La., would prohibit online platforms from disseminating children’s personal information without obtaining a verifiable parental consent, effectively ending ads targeted at kids and teens. That bill, which has a bipartisan group of 20 other senators as co-sponsors, would raise the age of children protected to up to 17, from up to 12 under current law.

The two bills are meant to mitigate social media practices aimed at keeping kids online and promoting addictive behavior. The push for them comes in part after whistleblowers from Facebook and Instagram, owned by Meta Platforms Inc., testified before Congress that the company had ignored internal warnings about the dangers children face. 

Parents whose children have either died by suicide or have confronted mental health issues after being exposed to addictive social media content have urged lawmakers, including Senate Majority Leader Charles E. Schumer, D-N.Y., to pass legislation to address their concerns. Schumer announced last week he would bring the combined measures up for a vote, saying, “Social media can do a lot of good things, but it also can lead to serious health risks that we cannot ignore.”

Challenges incoming

Tech industry groups, nonpartisan organizations and free-speech advocates opposing the package will challenge it in the courts, said Chris Marchese, director of the litigation center at NetChoice, a trade group that represents several tech companies. 

“Congress is trying to prohibit minors from accessing certain types of content online, putting every American user at risk of having to give up their personal information simply to access lawful speech,” Marchese told reporters late last week. “So that is blatantly unconstitutional.” 

Marchese said provisions in the Blumenthal-Blackburn bill run into the same questions decided in the 2005 case Brown et al. v. Entertainment Merchants Association, in which the Supreme Court ruled that the California law banning the sale of violent video games to anyone under age 18 and requiring clear labeling was a violation of the First Amendment. 

Writing the majority opinion in the 7-2 decision, then-Justice Antonin Scalia said video games deserved First Amendment protection and that while governments could pass laws to block obscene speech, violent material in video games does not constitute obscenity. 

The Blumenthal-Blackburn measure “is unfortunately the exact model of unconstitutionality that the Court struck down 13 years ago,” Marchese said. The bill “really is an effort by the government to control how we access information online.” 

A substitute amendment from Schumer that combines the bills makes some changes to the versions the Senate Commerce, Science and Transportation Committee approved.

The Blumenthal-Blackburn measure’s provisions on tech companies’ duty of care were narrowed to focus on product design features, with the Federal Trade Commission having the sole authority to enforce the provisions. The measure also includes a preemption provision that would override state laws on children’s online safety, a provision that is generally favored by tech companies because it absolves them of having to comply with a patchwork of laws.

The Markey-Cassidy measure was modified to give the FTC the authority to let educational institutions allow minors and children to access online content without requiring parental consent. And the measure now would allow tech companies to use identifying information solely for internal operations’ purposes.

Contradictory aims?

But opposition remains strong. Carl Szabo, vice president and general counsel at NetChoice, said provisions within the two bills contradict each other.

While the Blumenthal-Blackburn bill calls on social media companies to collect data to verify the age of users to decide what content is shown to minors and children, the Markey-Cassidy bill aims to restrict data collection on children such as age, Szabo said. 

NetChoice, whose members include Meta, as well as Amazon, Airbnb, Google and others, has mounted legal challenges to several state laws that have sought to curb social media platforms. 

In a recent decision, the Supreme Court sent two cases brought by NetChoice against social media content laws passed by Florida and Texas back to lower courts. Writing the majority opinion, Justice Elena Kagan said social media content moderation is free speech protected by the First Amendment.

Sen. Rand Paul, R-Ky., the lone lawmaker who voted against cloture, is raising some of the same issues. Paul said vague wording would allow government bureaucrats to determine what content is allowed, while the causes of children’s anxieties could change over time, allowing experts, not Congress, to define those causes. He offered an example of climate change issues causing anxiety for some people, meaning social media companies would have to remove climate change content.

“This bill is a Pandora’s box for censorship,” Paul said on the Senate floor, referring to the Blumenthal-Blackburn bill.

Alex Ambrose, policy analyst at the Information Technology and Innovation Foundation, a nonpartisan group, said with these bills, Congress would be “passing legislation that at its core is an issue that’s up for debate.” More research and studies are needed to establish whether and how social media use causes anxiety and leads to dangers, Ambrose said in an interview. 

Fight for the Future, a digital rights group, said the bills are less about protecting kids online than they are election-year stunts.

“Lawmakers could have advanced strong privacy, antitrust and algorithmic justice legislation to actually address the harm of Big Tech and crack down on surveillance-driven business practices that harm young people and adults,” Evan Greer, director at Fight for the Future, said in an email. “Instead, they’re advancing what amounts to a blank check for censorship that can and will be used to suppress lifesaving online resources.”

Greer said the measures could stifle information sought by LGBTQ groups, those seeking gender-affirming care and abortion-related information. 

Marchese and Szabo at NetChoice said they would push House lawmakers to oppose the measure if the bills come up for consideration. 

A bill sponsored by Rep. Gus Bilirakis, R-Fla., chair of the House Energy and Commerce Subcommittee on Innovation, Data, and Commerce, is the companion legislation to the Blumenthal-Blackburn bill. The companion to the Markey-Cassidy bill is sponsored by Rep. Tim Walberg, R-Mich.