Some court decisions are bad; others are abysmal. The bad ones merely misapply the law; abysmal decisions go a step further and elevate abstract principle over democratic will and basic morality. The latter’s flaw is less about legal error and more about “a judicial system gone wrong,” as the legal scholar Gerard Magliocca once put it. A case such as Hammer v. Dagenhart exemplifies the abysmal: The case, decided in 1918, struck down child-labor laws during an era of public outcry and concern about children working as long as 70 hours a week in dangerous jobs. Making it truly wretched was the Dagenhart court’s reliance on a dubious constitutional distinction to allow federal regulation of “evil” activities such as the lottery, prostitution, and the sale of alcohol but not of the employment of children.
In our times, some of the leading candidates for the “abysmal” category are the extraordinarily out-of-touch decisions striking down laws protecting children from social-media harms. The exemplar is NetChoice v. Bonta, in which a U.S. district court in California struck down the state’s efforts to protect children from harms arising from TikTok, Instagram, and other social-media firms. In its insensitivity to our moment and elevation of conjectural theory over consequence, NetChoice is a true heir to the Dagenhart tradition.
Social media presents an undoubted public-health crisis for the country’s preteens and teens. A surgeon-general report released earlier this year noted that, per a recent study, “adolescents who spent more than 3 hours per day on social media faced double the risk of experiencing poor mental health outcomes including symptoms of depression and anxiety,” compared with their peers who spent less time on such platforms. A particular concern are algorithms that serve content that promotes eating disorders, suicide, and substance abuse, based on close surveillance of a given teenager.
The California law, passed last year, seeks to make social-media companies “prioritize the privacy, safety, and well-being of children over commercial interests.” It may not have been a perfect work of draftsmanship, but in its basic form, it sought to protect children by barring companies such as TikTok from profiling children, excessively collecting data, and using those data in ways that are harmful to children. After the law’s enactment, big tech firms and their lawyers, apparently unafraid of bad publicity, sued the state through an industry group, NetChoice. Their lawyers advanced a theory that collecting data from children is “speech” protected by the First Amendment. To her lasting disgrace, Judge Beth Freeman bought that ridiculous proposition.
The very idea that TikTok or Instagram’s data practices could be First Amendment speech is sufficiently bizarre as to require some introduction of all the steps that lead there. It begins with accepting that a corporation like Meta (the owner of Instagram) or ByteDance (the Chinese firm that owns TikTok) has the same constitutional rights as a human person. Next, one must accept that the ongoing collection and dissemination of sensitive information belonging to children is a form of “speech” by those corporations. Finally, because certain nonprofits and educational institutions are exempted from parts of the California law, the court held that the government is discriminating against TikTok in favor of, say, high schools, in violation of the Constitution.
Every step of this logic is tortured and wrong. To be fair, much of the blame lies with the U.S. Supreme Court, not with Judge Freeman. Citizens United, for example, requires her to treat corporate speech as human speech. But even that case was about a corporation engaged in political speech (a film critical of Hillary Clinton), and Freeman could have leaned into that nuance to uphold the law. Citizens United was no great step forward for American democracy, yet it is even less clear what First Amendment values are advanced by allowing TikTok to spy on children without any oversight.
But if following Citizens United was unavoidable, the truly indefensible part of Freeman’s opinion is the equation of data collection from minors with “speech,” so as to render the law’s privacy protections unconstitutional. California argued that its laws, like any privacy laws, are merely the regulation of business practices, a form of conduct. But the court focused on the fact that the law regulated both the collection and the usage of data and differentially regulated different users of the data. That being the case, the court concluded that the prohibitions in the law therefore “limit the ‘availability and use’ of information by certain speakers and for certain purposes and thus regulate protected speech.”
That little feat of logic creates an extraordinary immunity that may well protect nearly everything a firm such as TikTok does with data. Consider that social-media apps such as Instagram and TikTok constantly track what children do on their apps and sites. Maybe your kid likes to click on ads promoting new video games, or maybe they seem interested in weight loss. That information is gathered and used both to keep kids glued to their screen for longer with “recommended” content and to improve advertisers’ ability to target their efforts.
To state the obvious, this kind of “speech” is a very far cry from, say, distributing pamphlets criticizing a tyrannical king—the sort of speech that the First Amendment was originally written to protect. It is also nothing like protecting war protesters or Jehovah’s Witnesses, subjects of some of the 20th century’s most important First Amendment cases.
Not all uses of information can be constitutionally protected speech. If a mob boss orders his lackey to shoot someone dead, he may be transmitting information, but he is not “speaking,” in a constitutional sense. Imagine if TikTok, in an extension of its current business model, hired private investigators to sneak into people’s homes and collect information about teenagers to turn over to advertisers. If the firm were sued for trespass or invasion of privacy, would anyone think “speech” was at issue, as the court’s logic suggests? The better word for such conduct is “spying,” and even if that spying happened to involve collecting information and sending it onward, and even if there were an exception for parents, none of this would make spying First Amendment speech.
But let us not, like the court, make the mistake of getting too lost in the details. The real question is whether the public has the power to respond to an ongoing public-health crisis. Yes, there is room to debate whether California should have acted at all, or whether the law got the balance right. But in a democracy, legislatures get to make these kinds of decisions, to “serve as a laboratory” of democracy, as Justice Louis D. Brandeis put it; if a law isn’t working well, it can be amended, adjusted, or preempted. If a judge strikes down a law on constitutional grounds, the democratic process is over—ended by judicial activism.
And to what end? It is one thing when courts employ the First Amendment to protect unpopular groups—say, Jehovah’s Witnesses or Holocaust deniers—against government censorship. Such decisions may be unpopular, but the court is at least standing for the idea that even unpopular speech should be protected. By contrast, in NetChoice v. Bonta, the court has taken a stand for the right of social-media firms to invade the privacy of children. It is hard to imagine a more morally suspect choice.
This case is, unfortunately, not the first time a group has opportunistically hijacked the First Amendment to defend its business model. The abuse of high constitutional principle to defend low corporate behavior was pioneered by the tobacco industry, which has used the First Amendment to weaken warning labels and advertising restrictions, based on the premise that such labels interfered with its constitutional right to remain silent about the risks of lung cancer. When it comes to kids, Big Tech is following the path blazed by Big Tobacco in more ways than one. And the California case is part of a larger campaign by major social-media firms to use the First Amendment against efforts to protect children from social media’s harms; a similar law in Arkansas is under attack as well.
NetChoice v. Bonta is just a district-court decision that will be reviewed on appeal. Nevertheless, what it has in common with the worst decisions of centuries past is a complete loss of perspective. The decision is a nearly unreadable mess of jargon, showing how easily a judge can get lost in a professional bubble, become fixated on doctrinal details, and forget that what she is doing is a misuse of the Constitution. The court and lawyers are in the same place that led courts to strike down child-labor laws in the 1910s. The result is an abysmal decision almost certain to be remembered as having landed on the wrong side of history.