The Volokh Conspiracy
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Would Banning Social Media Implicate The Free Speech Clause? Or Would It Be an Age-Based Classification?
These questions relate to Skrmetti.
During oral argument in Skrmetti, Justice Thomas disputed that the Tennessee law imposed a sex-based classification. Instead, he said, this was merely an age-based classification. Adults are able to receive certain treatment, but minors cannot. And generally, age-based classifications are reviewed for minimum rationality. For example, why do different states grant drivers licenses at 15, 16, 17, and 18 years old? Courts would never even ask such a question.
JUSTICE THOMAS: Much of your -- the latter part of your opening statement suggests that the -- well, seemed to suggest that there's an outright ban on this treatment. But that's not the case. It's really for minors. So why isn't this simply a case of age classification when it comes to these treatments as opposed to a ban, as you suggested in your opening statement?
Solicitor General Prelogar pushed back on this suggestion. She explained that when the government imposes two types of classifications (suspect and non-suspect), the courts have considered it under the suspect (or quasi-suspect) classification.
GENERAL PRELOGAR: It's certainly true, Justice Thomas, that the statute classifies based on age, but it packages that age classification with a sex restriction and says that for all adolescents, you cannot take these medications if they're inconsistent with your sex.
So I acknowledge that the State so far has not banned this care for adults, although I think that the arguments it's making that this isn't a sex-based line in the first place would equally apply in that context. But the Court has likewise made clear that when you classify on the basis of multiple characteristics, you can't avoid heightened scrutiny just because you have a non-protected characteristic that accompanies the protected one.
This exchange may have implications for another type of law. Australia banned social media for minors. Sweden is considering similar rules. I'm sure states in our country will follow suit.
How should the courts consider a categorical ban on social media for minors? Is the ban merely an age-based classification? Or does the ban violate the Free Speech Clause of the First Amendment? To rephrase the SG's answer to Justice Thomas, what happens when an age classification is packaged with a fundamental right?
I can't recall if anyone argued that the law in Brown v. EMA was merely an age-based classification. But Ginsberg v. New York seemed to expressly countenance different speech restrictions for minor.
I'm not sure what the answer is to this question. I'll give it some thought.
