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In the 21st century information landscape — complete with its forests of streaming platforms and seas of podcasts — social media is a damned desert.
It’s full of weaponized misinformation and racism. It herds us into echo chamber pits of our own making. Creates new avenues for sharks and charlatans.
And, without fail, Elon Musk is inventing new ways to make it worse.
But should social media come with a warning label about how bad it can make us feel?
The federal Stop the Scroll Act, as proposed by Alabama’s own Sen. Katie Britt and Pennsylvania’s Sen. John Fetterman, would do just that, requiring social media platforms to warn users of the “negative mental health impacts” associated with their use in addition to providing mental health resources, including the website and telephone number of a suicide prevention hotline.
“This is a bipartisan issue,” Britt said during a Fox News appearance with Fetterman. “This isn’t Democrat or Republican — this is an American issue, and it’s one that we’ve got to get ahead of because it’s already ahead of us.”
Under the provisions of the proposed legislation, the warning could not be included (or, rather, buried) in a terms and conditions info dump, nor could it simply disappear after a given period of time; if Stop the Scroll becomes law, social media users would have to affirmatively acknowledge what the government sees as the inherent mental health risks and dismiss one more popup box or click one more X each and every time they log on to Facebook, Twitter, TikTok or whatever social media hellfire might befall us in the future.
Setting aside for a moment the fact that the bill’s only chance at becoming law is advancing in a lame duck session of Congress, could it withstand constitutional scrutiny? Requiring companies like Facebook and Twitter to disclaim (in part) their own products implicates important First Amendment concerns — ones that, unsurprisingly, have been previously examined by courts in the context of other government-mandated warning labels. The subsequent case law suggests that while it may be possible to deploy a social media label that doesn’t offend the First Amendment, both the broader motivation behind the Stop the Scroll Act — the ongoing moral panic surrounding the supposed harms of social media — and our previous, strikingly similar attempts to regulate violent video games point to a more difficult path in the courts.
As Supreme Court Justice Robert H. Jackson wrote in 1943, for a majority striking down a state law requiring public school students to recite the Pledge of Allegiance, “To sustain the compulsory flag salute we are required to say that a Bill of Rights which guards the individual’s right to speak his own mind, left it open to public authorities to compel him to utter what is not in his mind.” The problem of compelled speech is just that — the replacement of an individual’s (or, in this case, a corporation’s) preferred message with the government’s, an act that is in many ways more insidious than simply silencing speech. But such mandates can be constitutional, especially as applied to commercial speech, where the assumed infringement on liberty is both not against a corporeal entity and possibly beneficial to consumers. As the Supreme Court concluded in 1985 in Zauderer v. Office of Disciplinary Counsel of Supreme Court, required commercial disclosures such as warning labels are constitutional only where they offer “purely factual and uncontroversial information” and are not unduly burdensome on the speaker.
The question of whether something is unduly burdensome is determined generally by how taxing it is upon the speaker, usually in terms of space, time and/or effort given to the government’s message at the expense of the speaker’s preferred one. In National Institute of Family and Life v. Becerra, the Supreme Court concluded that requiring unlicensed crisis pregnancy centers to run a 29-word statement in up to 13 languages alongside any advertising was unduly burdensome because it “drown[ed] out the facility’s own message.” Similarly, the Ninth Circuit found that a San Francisco city ordinance requiring ads for sugar-sweetened beverages to devote 20 percent of their space to a government warning about obesity, diabetes and tooth decay was too demanding of a speaker where the government had not been able to show a smaller warning would be less effective. The Seventh Circuit likewise found that a four square-inch sticker on the retail box of a sexually suggestive video game was unduly burdensome given the relatively sparse real estate on the average 7.5-by-5.5-inch box. “Certainly we would not condone,” the Seventh Circuit wrote, “a health department’s requirement that half of the space on a restaurant menu be consumed by the raw shellfish warning.”
As to whether a required disclosure is both factual and noncontroversial, the analysis presupposes that the government is trying to advance some relevant and important interest, such as economically protecting the American agricultural sector with country-of-origin labels. However, the government interest in mandated disclosures can’t simply be, as courts have derided, mere “consumer curiosity,” as in the case of requiring milk producers to label products that have been derived from cows given growth hormones (where such hormones have no adverse effects to either the milk or humans who consume it).
Required labels, therefore, should be helpful to consumers in a substantive way and state actual facts if they are to be upheld under Zauderer. First, helpful information credibly assists consumers in the decision-making process, such as in the case of restaurants being required to post calorie counts or when an author peddling books on how to commit income tax fraud was forced to disclose on his website the injunction requiring him to stop providing such incriminating advice. And second, factual information should be indeed be based in fact, not predicated on evoking emotion in consumers (such as court-rejected graphic cigarette labels, a reformulation of which were upheld this year after more literal visuals were created) or offering only the government’s subjective opinion (as when Illinois attempted to label what it believed to be sexually suggestive video games).
Finally, the question of whether a required disclosure is controversial could be as simple as pushing an unwilling speaker into a thorny political debate, such as California’s requirement in Becerra that licensed clinics post notices of state-offered family planning services including abortion. Controversial disclosures could also be those that force commercial speakers to take the government’s preferred side in a scientific debate in which the science is not actually disputed by legitimate sources, like bogus warnings about things such as harmless chemicals in cooked food, pesticides that have been shown to be safe and cell phone radiation.
In analyzing the Stop the Scroll Act as proposed, it’s likely not unduly burdensome under Zauderer since the legislation doesn’t mandate some onerous percentage of screen size or force social media platforms to include an overly long disclosure at every login.
But is a warning about the perceived mental health dangers of social media use factual and uncontroversial? Ultimately — and this comes without being an expert on the science — it appears to be a close call, one that might come down to a court’s inherent leanings toward either the Fourth Circuit’s approach earlier this year in Maryland Shall Issue, Inc. v. Anne Arundel County or the Ninth Circuit’s views in Video Software Dealers Association v. Schwarzenegger.
In Maryland Shall Issue, the court upheld a county mandate that required gun stores to distribute two pieces of literature to customers upon the sale of a firearm: an eight-page pamphlet on guns and suicide prevention and a one-page flyer on conflict and suicide prevention. In declaring the handouts factual and not controversial, the court noted how the pamphlet was careful to distinguish between guns being a risk factor for suicides rather than being a cause. “[I]ndeed, as to the cause, the pamphlet identifies other causes such as mental conditions, but not firearms,” the court wrote. “It does state that access to guns increases the risk of suicide because guns are the primary means for committing suicide.” (Emphasis in original.)
But in Video Software Dealers Association, the Ninth Circuit struck down California’s attempt to both label violent video games and limit the sale of such games to minors. California argued the games were inherently harmful for children in that they caused them to be more aggressive, but the court found the research proof of those feared harms to be lacking. “Nearly all of the research is based on correlation, not evidence of causation, and most of the studies suffer from significant, admitted flaws in the methodology as the relate to the state’s claimed interest,” the court wrote.
Video Software Dealers Association was ultimately upheld by the Supreme Court in an opinion that also savaged the social science research as proving little if anything — and certainly not rising to the level of what we can use to justify the suppression and marginalization of pure speech.
Would a court see the Stop the Scroll Act as similarly (and speciously) connecting mental health issues and social media consumption? A real logic problem for California was that it didn’t seek to label or target any other violent forms of media, choosing only to single out video games for persecution. And likewise, Britt and Fetterman are only extolling the ills of social media and not anything else that might contribute to poor mental health. It does also stink, as the Fourth Circuit said in Video Software Dealers Association, as a fundamental problem of confusing correlation and causation.
This version of the Stop the Scroll Act must pass by the end of this session of Congress or it will be dead. Certainly, Britt and Fetterman can reintroduce it in any future session, but as long as it has these flaws — as long as it continues to look more like the government (in good faith or bad) making a vibes-based attack on social media and less like responsible regulation — it will be misguided and, just perhaps, unconstitutional.
