Florida moves forward with rules on its new social media law that could be challenged on First Amendment grounds

By Jim Saunders ©2024 The News Service of Florida

TALLAHASSEE — Facing potential First Amendment challenges, Florida has proposed details about how it will carry out a new law aimed at keeping children off social media platforms and blocking minors from accessing online pornography.

Attorney General Ashley Moody’s office on Tuesday published three proposed rules that include addressing one of the most closely watched issues in the law: age verification.

House Speaker Paul Renner, R-Palm Coast, made a priority of passing the law (HB 3) during this year’s legislative session, citing what he said are harms to children from social media. Technology industry groups have argued that parts of the law, including its age-verification requirements, would violate First Amendment rights.

The law, which will take effect Jan. 1, seeks to prevent children under age 16 from opening social media accounts on at least some platforms — though it would allow parents to give consent for 14- and 15-year-olds to have accounts. Children under 14 could not open accounts. It also requires age verification to try to prevent minors under age 18 from having access to online pornographic sites.

The social-media restrictions have drawn most of the attention, and the law largely puts the onus on platforms to verify the ages of users. It says that “knowing or reckless” violations could lead to the attorney general’s office filing lawsuits against platforms for unfair and deceptive trade practices. Also, platforms could face lawsuits filed on behalf of minors.

One of proposed rules published Tuesday says that willful “disregard of a person’s age constitutes a knowing or reckless violation” of the social-media restrictions.

“A social media platform willfully disregards a person’s age if it, based on the facts or circumstance readily available to the respondent (platform), should reasonably have been aroused to question whether the person was a child and thereafter failed to perform reasonable age verification,” the proposed rule says.

The proposal adds that the attorney general’s office will “not find willful disregard of a person’s age has occurred if a social media platform establishes it has utilized a reasonable age verification method with respect to all who access the social media platform and that reasonable age verification method determined that the person was not a child unless the social media platform later obtained actual knowledge that the person was a child and failed to act.”

The proposed rules also address what is described as “reasonable parental verification” that could come into play, for instance, if parents want to consent for 14- and 15-year-old children to have access to social media platforms.

One of the rules defines reasonable parental verification as “any method that is reasonably calculated at determining that a person is a parent of a child that also verifies the age and identity of that parent by commercially reasonable means.”

That could include methods such as platforms requesting from children the names, addresses, phone numbers and email addresses of parents; contacting the people whose names were provided by the children to seek information and confirmation; and “utilizing any commercially reasonable method regularly used by the government or business to verify” parents’ identities and ages.

The law, which Gov. Ron DeSantis signed in late March, does not identify social media platforms that would be affected by the restrictions. But it includes a definition of such platforms, with criteria related to such things as algorithms, “addictive features” and allowing users to view the content or activities of other users.

Renner and other key supporters of the law argue that social media companies have created addictive platforms that harm children’s mental health and can lead to sexual predators communicating with minors. But critics, including tech-industry groups, have argued the bill is unconstitutional and pointed to courts blocking similar legislation in other states.

Before DeSantis signed the law, the tech-industry group NetChoice sent a letter to him that contended the measure was unconstitutional for a series of reasons, including its age-verification requirements.

“Age-verification schemes for the internet are blatantly unconstitutional,” Carl Szabo, the organization’s vice president and general counsel, wrote in the March 7 letter. “Because the internet is home to significant amounts of First Amendment speech, users should not be forced to forfeit their anonymity in order to access it.”

As DeSantis signed the law in March, Renner said he expected NetChoice to file a lawsuit. But Renner, an attorney, expressed confidence that the state would win in court and cited the dangers of social media to children.

“This is an issue where we can no longer stand on the sidelines because of what we know,” he said.

Tuesday’s publishing of the proposed rules in the Florida Administrative Register could lead to a hearing before the rules are finalized. Rules are commonly used in state government to flesh out details after laws pass.