The media have been quick to portray efforts to restrict children’s social-media access as the exclusive province of red states and MAGA conservatives. But late last year, Australia—no hotbed of social conservatism—passed the most comprehensive youth social media ban to date. This major move from Down Under has not only mainstreamed social media bans for kids; it also shines a spotlight on the coming U.S. Supreme Court showdown over social media age-verification laws.
As of December 10, Australia’s left-leaning government began enforcing its ban, requiring social-media companies to block any users under 16 from accessing their accounts. Facebook, Instagram, Reddit, Snapchat, TikTok, YouTube, and X are among the restricted sites. The exact mechanism of age verification and account deactivation is left up to the individual companies. Failure to comply comes at a steep cost, with fines of up to $33 million in U.S. dollars.
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Justifying the ban, Australian officials have cited the growing list of deleterious health effects linked to teenage social-media use. In 2023, U.S. Surgeon General Vivek Murthy warned that children spending more than three hours per day on social media dramatically escalate their risk of mental-health problems. Research has shown consistent links between social-media use and increased anxiety, depression, loneliness, poor sleep, and low self-esteem.
Recent studies also show a link between time spent on social media and risk of suicide, particularly for teenage girls. In 2023, the CDC reported that close to one in three teenage girls had “seriously considered” suicide. That figure amounts to a 60 percent increase in the past decade, roughly mirroring the meteoric rise of social-media use among teens.
Unsurprisingly, Australia’s ban is unpopular with teens. But it enjoys broad support among Australian adults. Early evidence suggests that Australia may kick off a global trend, as countries like Denmark and Malayasia, as well as the European Union, are likewise mulling teen social-media bans.
In America, numerous states—including Arkansas, Florida, Mississippi, Texas, Utah, and Louisiana—have enacted their own age-verification laws for social-media sites. While it’s true that these are all red-leaning states, left-leaning American politicians are becoming increasingly vocal as well. California and New York have targeted so-called “addictive feeds” for minors on social media, while potential 2028 presidential candidate Rahm Emanuel—President Obama’s former White House chief of staff—is aggressively advocating for the U.S. to follow Australia’s lead.
Polls show that age verification for social media is also popular among American adults. That means the main question surrounding these laws is whether they can pass constitutional muster under the First Amendment to the U.S. Constitution. In the 2024 case Free Speech Coalition v. Paxton, the Supreme Court upheld a Texas law requiring age verification for websites hosting sexually explicit content. The Court held that any burden to adult speech rights (to access sexually explicit content) caused by age verification was incidental and therefore did not run afoul of the First Amendment.
This might seem like a good sign for social-media age verification. But it is far from certain that the Court will accept age-verification mandates outside the context of pornography. In a preliminary procedural holding involving Mississippi’s age-verification law last summer, Justice Brett Kavanaugh issued a brief concurrence that foreshadowed his apparent view that the Mississippi law—and potentially age verification for social media generally—is likely unconstitutional. While Kavanaugh did not provide any details as to why he viewed the law as unconstitutional, one can presume that he may be drawing a distinction between pornography sites and other websites.
Also looming large is the 2011 Supreme Court case Brown v. EMA, in which the Court pointedly refused to uphold age gates outside of the context of sexually explicit material—in that case, involving a California law prohibiting the sale of violent video games to minors. Some legal commentators point to the Brown decision as proof that social-media age verification would similarly find a poor reception at the Supreme Court.
But careful observers will note that Brown also featured a concurring opinion from Justice Samuel Alito and Chief Justice John Roberts. While they agreed that the California law at issue was poorly drafted and thus unconstitutional, they left the door open for a future (more carefully drafted) law passing constitutional muster.
Further, a dissenting opinion from Justice Clarence Thomas in Brown argued that, under the original public meaning of the First Amendment, the freedom of speech “does not include a right to speak to minors (or a right of minors to access speech) without going through the minors’ parents or guardians.” As such, Thomas would have upheld California’s video game sales ban for minors. (Notably, many of the pending state social-media age verification laws have parental consent built in, allowing parents to greenlight their teen’s social media use.) And of course, today’s Supreme Court looks vastly different than the 2011 Court.
The key question will be whether the Court opts to extend the core rationale of Paxton outside of the context of pornography to social media. Many may not view social media as per se obscene for children like pornography is. But the evidence of the harm to kids from social-media use is sufficiently overwhelming that it could lead the Court to be open to regulations restricting children’s access. Under the Paxton framework, the inquiry would then become whether age verification for minors only incidentally burdens adult speech rights to access social media.
On this front, the current technological state of online age verification is critical. As John Ketcham and Ilya Shapiro argued in a Manhattan Institute amicus brief in the Paxton case, today’s age-verification techniques—using tools like zero-knowledge proofs, biometric age estimation, and third-party provider verification—protect the privacy of users and pose few hurdles to adults accessing sexually explicit content, or, in this case, social media.
This type of narrowly tailored technological capability—allowing for children to be protected from potential harm, while only incidentally burdening adult free speech rights—might be just enough to allow America to follow Australia’s lead.
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