WLF Urges Tenth Circuit to Reject Colorado’s Effort to Dilute First Amendment Standards

“Even when it comes to safeguarding our kids, adult lawmakers must follow the First Amendment.”
—Zac Morgan, WLF Senior Litigation Counsel

Click here to read WLF’s brief.

(Washington, DC)—Washington Legal Foundation (WLF) today urged the U.S. Court of Appeals for the Tenth Circuit to uphold a lower court decision enjoining a state law that forces social-media platforms to discourage their younger customers from using their products.

The case arises from a Colorado statute that will compel a social-media company to either (1) promote the State’s own preferred research into the effects of social media use by children or (2) regularly prod underage users to stop using the app at times and places of Colorado’s choosing. The lower court correctly applied the most stringent form of First Amendment review to this compelled-speech mandate (strict scrutiny) and stopped the law from going into effect. On appeal, Colorado claims that because its regulation is motivated by the welfare of children, its effort to control corporate speech should receive the lightest touch of judicial review (rational basis).

WLF’s brief explains why that’s wrong. Outside of a few exceptions not relevant here, all compelled-speech laws must survive strict scrutiny under the First Amendment, which puts the onus on the State to prove that its mandate is the least-restrictive means of accomplishing its goal. But if Colorado wants to get kids off social media, it has a large suite of far less speech-restrictive tools to do so: public-education campaigns, smartphone bans at public schools, or even carefully crafted age-verification rules. So the law flunks First Amendment review. The Constitution forbids Colorado from compelling a company to choose between uttering the State’s preferred science, harassing its customers, or breaking the law.