Sarah Huckabee Sanders, governor of Arkansas, appears uncowed by Big Tech. Inspired by Jonathan Haidt’s new book Anxious Generation (which I reviewed favorably in American Affairs), on May 6, Sanders sent a letter to her fellow governors in all fifty states, exhorting them to “work together” in rescuing America’s children from the “dark sewer of social media and screen addiction.” The governor also forwarded copies of Anxious Generation, and highlighted its final chapter, where Haidt lays out a legislative agenda to get kids off of smartphones and social media. Sanders summarizes it thusly:
- No smartphones before high school.
- No social media before sixteen.
- Phone-free schools.
- More outdoor play and childhood independence.
“It’s an agenda I plan to pursue,” she said, “and I hope you read this book and join me.”
It is cheering to see these proposals so unreservedly endorsed by a governor—particularly this governor. Sanders points obliquely to “setbacks,” acknowledging that, “Unfortunately, Big Tech-supported interest groups have blocked many of these laws and policies.” What she does not say—but what all her peers know—is that the Social Media Safety Act, which she signed into law in April 2023, was subsequently (and successfully) sued by Netchoice, which lobbies on behalf of Big Tech. In a disastrous ruling by a federal district court judge in Arkansas, the law was enjoined and barred from going into effect.
In several editorials elsewhere, my colleagues and I have critiqued the ruling, so I won’t repeat our arguments here. But I think the subtext of Governor Sanders’s letter is important: Big Tech is one of the mightiest forces to ever appear on this earth; but despite significant setbacks, we must fight on to make the internet safe for our children. Victory is only possible if we don’t quit.
This year, several other states have passed laws in the vein of Arkansas’s bill, apparently undeterred by Netchoice’s success. Florida requires schools to be phone-free; several other states are considering following suit. President Biden signed a law stating that TikTok must be sold to an American company or risk being banned altogether. The Kids Online Safety Act has more than sixty votes in the U.S. Senate and a companion bill has been introduced in the House (and appears likely to move). And perhaps best of all, the 5th Circuit Court of Appeals upheld a Texas law that required age-verification on pornography sites. This is a severe blow to the strategy of Big Tech’s lobbyists, who have opposed anti-porn laws around the country (they know that if a Court finds that age-verification on porn sites is not too burdensome for adults, it will fundamentally weaken Silicon Valley’s hand jurisprudentially).
I don’t want to be naive. Our opposition is mighty. These companies have assembled a vast army of lobbyists, perhaps the largest ever. According to one study, in 2023, five companies alone—Meta, ByteDance, X (formerly Twitter), Snap, and Discord—spent more than a whopping $30 million in lobbying, and employed one lobbyist for every four congressmen.
And Big Tech has victories of its own to tout, as underscored by the Arkansas experience. But even those may expose the ultimate weakness of Big Tech’s position. Netchoice has successfully had three laws enjoined by district courts—in Arkansas (as mentioned), California, and Ohio. Read separately, these rulings suggest there is merit to the claims that these tech-limiting laws are unconstitutional. But read together, a pattern emerges: These district courts seem to believe the U.S. Constitution fundamentally opposes the protection of kids online—an interpretation that I believe is unsustainable.
Across the three rulings, a federal judge finds that the following measures violate the First Amendment right to freedom of speech: age verification, age estimation, parental consent, filing Data Protection Impact Assessments, prohibiting the collection and sale of children’s personal information, prioritizing content for the well-being of minors, mandating high-default privacy settings for children, making prominent and understandable terms of service, requiring companies to enforce their own privacy policies, blocking knowingly harmful uses of children’s data, forbidding covered companies from profiling child users, prohibiting the unauthorized use of children’s personal information, guarding underage users from being manipulated by so-called “dark patterns” (i.e., nudging children toward certain content via subliminal techniques), and other measures.
These rulings, I submit to you, are absurd—and ultimately unsustainable. They display a radical libertarian jurisprudence that protects massive corporations in their efforts to exploit American children. My reading of the Constitution is different. It was drafted to ensure the rights of the weak against the works of the powerful. There is a strong chance, given the scale of the crisis before us, that the Supreme Court will see it the same way.
But to get that ultimate decision, we have to take risks like Governor Sanders and fight for these laws all the way up to the highest court in the land. In that spirit, and in the spirit of her letter, it would be encouraging to see her and her state try again to pass a re-tooled Social Media Safety Act (or perhaps something even stronger, like a clean ban of users under the age of sixteen, as Haidt suggests). Such laws could very well be the difference between a country that puts children before Big Tech corporations and a country that leverages the Constitution to prey on the weak.
Michael Toscano is executive director of the Institute for Family Studies.
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Image by Sarah Sanders licensed via Creative Commons. Image cropped.
