Can states force social media sites to carry warning labels?

By Jenna Greene

Oct 29 (Reuters) - From cigarettes to household cleansers to over-the-counter medications, countless consumer products carry health and safety warnings. Should social media platforms be forced to do the same?

That question is at the heart of free-speech litigation by internet industry trade group NetChoice, which is challenging laws in multiple states that would require social media companies to warn minors about excessive social media use.

The latest suit, filed last week against California, adds another front to the growing First Amendment battle over compelled speech – a fight that has attracted a parade of outside interests and raises broader questions about the government's ability to force businesses to warn consumers about their products.

California’s law AB 56, which is slated to take effect on January 1, will require social media platforms such as Instagram, Snapchat and TikTok to caution children and teens that “The Surgeon General has warned that while social media may have benefits for some young users, social media is associated with significant mental health harms and has not been proven safe for young users.”

The notice will appear when a minor first logs on, again after three hours of cumulative active use, and at least once every hour thereafter.

NetChoice is challenging a similar law in Colorado, and won an injunction last year to stop the warning requirement from going into effect. That decision is now on appeal before the 10th US Circuit Court of Appeals, which is expected to hear oral arguments early next year. The trade group also has a case pending against Minnesota in federal district court.

At first glance, the warning mandates might seem like a relatively minor concern for beleaguered social media companies. They face thousands of personal injury lawsuits alleging their platforms are designed to drive compulsive use by young people, leading to problems including depression, eating disorders and self-harm.

Other states, including Virginia, have passed laws restricting social media use by minors, while Australia last year became the first country to ban social media for under-16s. And Meta in August agreed to pay up to $18 billion to settle claims by nearly all US states that it designed Facebook and Instagram to addict children.

So why are the warning-label laws generating such fierce pushback?

As Paul Taske, director of the NetChoice Litigation Center told me, “Just because there’s not an $18 billion fine, it doesn’t mean it’s acceptable for the government to come in and compel speech.”

Taske contrasts the proposed social media warnings with messages involving physical products, such as cautioning consumers that laundry detergent pods are harmful if swallowed. That’s a straightforward, factual statement, he said.

But what about when the “product” being consumed is speech?

The American Civil Liberties Union, the Foundation for Individual Rights and Expression and others argue in an amicus brief that the warning labels would force social media companies "to communicate the government’s view that the speech itself is harmful." Even if the government’s goal is well-meaning, they argue, such a mandate is unconstitutional.

A spokesperson for the California attorney general said via email that the state’s Department of Justice “is committed to defending California's laws. We will respond as appropriate in court.” The Colorado AG’s office declined comment and Minnesota AG’s office did not respond to a request for comment.

In all three cases, a key question is whether the warnings can be considered commercial speech. If so, the states could more easily require them without running afoul of First Amendment protections.

The states and their supporters point to a 1985 US Supreme Court decision involving attorney advertising. In that case, the high court held that Ohio lawyer Philip Zauderer could be required to disclose in his ads that clients who hired him on a contingency-fee basis could still be responsible for litigation costs if they lost.

Using the framework laid out in the Zauderer decision, courts have generally upheld government mandates requiring businesses to disclose factual, uncontroversial information, so long as the requirements serve a legitimate state interest and do not unduly burden speech.

The states argue that their social media warnings fall squarely within that tradition, citing multiple studies that link excessive social media use to mental and physical harm in young people. And they say that they have a vital interest in protecting the well-being of children.

“The addictive elements in social media products have nothing to do with the underlying content and everything to do with luring youth into an endless loop, where their eyeballs are constantly drawn to social media,” 43 states and the District of Columbia said in an amicus brief backing Colorado's law.

The companies and their supporters counter that the science on social media harm is far from settled, and that the warning labels are not the kind of factual, non-controversial statements that can be compelled under commercial speech precedents.

To be sure, this isn't the first time courts have weighed government efforts to protect young people from allegedly harmful expression.

As the late Justice Antonin Scalia noted in a 2011 opinion striking down a law banning the sale of violent video games to minors, concerned adults have long sought to restrict youth from exposure to new forms of media, including dime novels, radio dramas, motion pictures and comic books. Yet courts have held the First Amendment protects them all.

The question now is whether social media is a different animal — and if states can compel the platforms to convey their concerns about its harms.