Congress Struggles to Regulate Social Media Content

Technology Policy Brief #108 | By: Mindy Spatt | March 05, 2024
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A Senate Committee grabbed major media headlines for making Mark Zuckerberg say “sorry” to the parents of children harmed by social media, but his highly publicized apology drew derision from commentators and comedians as a meaningless show put on by a Congress that has been unable to pass significant legislation to address the harms of social media.  State Attorney Generals  and legislators have been far more aggressive, and more successful, but a pending Supreme Court decision could dramatically change the landscape.


Zuckerberg’s performance was mocked  by commentators and talk show hosts, including Jimmy Kimmel, who said Zuckerberg’s apology had “the level of sincerity you can usually only get on ChatGPT.”  Bills in languishing in Congress include a privacy rights one requiring online platforms to disclose how a users’ personal data will be collected and used, a proposal for a Digital Consumer Protection Commission and the Kids Online Safety Act. (KOSA)

Zuckerberg was one of a mostly united group of social media CEOs who oppose those bills, as they do pretty much any government regulation or oversight over their operations.  Except for Evan Spiegel, the CEO of Snapchat, who broke with the group by throwing his company’s support behind KOSA, which would make platforms like Snapchat liable for exposing minors to harmful content.  He urged Zuckerberg and the others to do the same.

Some senators appeared clueless.  Kimmel caught an especially strange moment from the hearing, with Louisiana Senator John Kennedy calling out Spiegel, saying “I see you hiding down there.”  Kennedy then asked Spiegel “What does yadda yadda yadda mean?”  Spiegel replied, “I’m not familiar with the term senator,” to which the Senator reacted to with the comment “very uncool.”

While Congress pussyfoots around, there’s action and reaction at the state level, and at the United States Supreme Court.  Thirty-three states filed suit in federal court in California in October 2023, claiming that Meta is violating laws forbidding the company from collecting data on children under 13 without their parents’ consent.  They also allege the company has deliberately designed their products to be addictive to children.

Last year, Utah passed legislation requiring social media companies to obtain parental consent for minors, verify the ages of their subscribers in Utah and execute a digital curfew on minors.  It is set to take effect next year,  although it is unclear how the rules would be enforced, or if the law would survive a challenge.   A similar law was approved in Arkansas but was struck down in court.  And the same arguments being made by the companies in these battles were made in a high-profile case heard at the US Supreme Court on Feb. 26.

Texas and Florida have passed laws to stop what they term as “censoring” by social media companies that have blocked Donald Trump and other extremists on their platforms.  They claim the companies should be treated as businesses that don’t have the right to reject customers they disagree with.  The companies argue that they should be treated as news outlets and have editorial discretion over what they publish, the same argument they make against state efforts to regulate them.

This same editorial discretion that conservatives object to has allowed the companies to censor content from a variety of sources, including Palestine (see Brief # 102 ), and, some would allege, allowed sexual exploitation and child pornography to proliferate.  The first amendment issues will be thorny for the Court to resolve.

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