Abstract
A growing number of states have passed laws requiring social media platforms to obtain parental consent before granting accounts to minors to combat rising mental health issues, cyberbullying, and screen addiction. Although well intentioned, every such law has been enjoined in the lower courts, and the Supreme Court has yet to address whether laws requiring parental consent for minors’ social‑media accounts violate the First Amendment. This Comment argues that lower courts have miscast such statutes as content‑based speech restrictions requiring strict scrutiny under Brown v. Entertainment Merchants’ Association. Parental consent laws differ from the content-based statute at issue in Brown. Moreover, when analyzed at the function level, parental consent laws regulate non-expressive functions, not speech itself. Therefore, parental consent laws should face intermediate scrutiny.
This Comment explores how parental consent laws pass constitutional muster while providing parents with a tool to protect minors online. Part II surveys several parental consent statutes and their mechanics. Part III reviews the existing First Amendment precedent in minors’, parents’, and platforms’ speech rights and examines the recent district‑court decisions on parental consent statutes. Part IV explains how the Supreme Court could distinguish parental consent laws from Brown v. Entertainment Merchants’ Association and uphold parental consent laws as content-neutral by analyzing them at the function level. Lastly, Part V outlines the First Amendment considerations legislatures should consider when drafting a parental consent law.
Recommended Citation
Kat Turco,
Not the “Mere Creature” of Big Tech: The Constitutionality of Parental Consent Laws for Minors’ Social Media Accounts,
104 Neb. L. Rev. 93
(2025).
Available at: https://digitalcommons.unl.edu/nlr/vol104/iss1/7