Attorney Franz Borghardt tackled one of today’s biggest policy fights in this week’s Legally Served: whether states can ban kids under 16 from social media — and whether such a ban would survive the First Amendment.
Australia announced a plan to block users under 16. That sparked the debate. Borghardt said parents in the U.S. can tell their kids to log off, but the government faces a higher bar. The First Amendment bars laws that restrict speech. Courts may soon decide if social media counts as protected expression in modern form.
The key question is simple: Are platforms like Facebook or TikTok the new town square? If courts say yes, any ban on teens would face intense constitutional scrutiny. The state would need a compelling reason, such as protecting minors from exploitation or predatory behavior. It would also need to prove no less restrictive option exists.
Enforcement raises more problems. Age checks create privacy risks. Parental responsibility varies. Platforms could face new liability. Borghardt noted that an outright ban may not work as well as stronger parental oversight.
The debate widened from there. Are dating apps social media? Does OnlyFans count? When does a minor’s online speech gain constitutional protection? Would Louisiana lawmakers even support a ban?
Borghardt said these questions are inevitable. As technology evolves, the nation’s constitutional interpretations will have to keep up.