The First Amendment Problems With Meta’s $17 Billion Deal
Meta's settlement includes some social media speech restrictions that states can't directly impose.
Elected officials and commentators hailed Meta’s settlement with 47 states as a massive victory that will protect teenagers from addictive social media. California Attorney General Rob Bonta said that it “institutes real change.” New York Attorney General Letitia James called the deal “groundbreaking.” The Wall Street Journal editorial board deemed it “sensible.”
One more word describes the settlement, which requires Meta to pay the states up to $17.1 billion and make sweeping changes such as screen-time limits for teens: jawboning.
The term refers to the government’s use of pressure on middlemen such as social media platforms to impose limits on speech that the First Amendment prohibits the government from imposing directly on speakers. The Supreme Court has taken a strong stance against jawboning, for good reason. A close examination of the Meta settlement reveals why it should concern anyone who cares about the First Amendment.
The settlement requires Meta to reduce teenagers’ exposure to “age inappropriate content.” While some of this content—such as child sexual exploitation and abuse—is not protected by the First Amendment and some content can legally be withheld from children, the settlement defines the term broadly to include gambling and “risky stunts,” as well.
The deal requires Meta to take steps to reduce teens’ exposure to speech already prohibited by its community standards, on topics such as drug use and eating disorders. Such policies could reduce teenagers’ access to helpful information such as educational materials. Meta is free to set its own rules on such subjects, but it becomes a First Amendment concern when the government uses the heavy leverage of pending litigation to codify those standards.
Not only do these “inappropriate content” standards raise serious First Amendment concerns for Meta’s consumers, but the mandatory content standards also intrude on Meta’s First Amendment right to set its own user content policies. In 2024, the Supreme Court ruled that the First Amendment protects such choices, as they “give the feed a particular expressive quality.”
Meta also agreed to “disable Teen Users from seeing numbers of likes or reactions” by default on its platforms. While this might sound reasonable, the U.S. Court of Appeals for the Ninth Circuit last year preliminarily blocked a similar provision in a California law, concluding that it “is not the least restrictive way to advance California’s interest in protecting minors’ mental health.” If California cannot restrict a teenager’s ability to view like counts, the states should not achieve this end run around the Constitution through a settlement.
The settlement threatens the First Amendment rights not only of minors but also of adults. The deal requires Meta to adopt an “age assurance framework” to identify whether the user is a minor or an adult. Because the requirement necessarily entails collecting information about every user, it threatens all Americans’ ability to use the internet anonymously, despite the agreement’s attempt to impose privacy protections and minimize the collection of personal data. “Once information is shared to verify age, there’s no way for a website visitor to be certain that the data they’re handing over is not going to be retained and used by the website, or further shared or even sold,” the Electronic Frontier Foundation wrote in 2023.
The deal’s impact on anonymous speech raises constitutional concerns because the Supreme Court for decades has held that the First Amendment shields the right to speak without having one’s name attached to the expression. “Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind,” the Supreme Court wrote in 1960. “Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all.” Since the internet’s infancy, courts have applied that precedent to online speech.
These are just a few of the settlement’s many impacts on First Amendment-protected speech. As Mike Masnick summarizes, “a legislature could not have mandated most of these features without running straight into the First Amendment.”
Defenders of the settlement would argue that the content restrictions and age assurance requirements are not direct government mandates but, rather, provisions to which Meta voluntarily agreed. But the Supreme Court has repeatedly questioned the purportedly voluntary nature of such restrictions when the government applies pressure.
Most recently, in 2024, the Supreme Court vacated a decision that allowed New York’s financial regulator to threaten enforcement actions against financial companies that did business with the National Rifle Association (NRA). “A government official can share her views freely and criticize particular beliefs, and she can do so forcefully in the hopes of persuading others to follow her lead,” Justice Sonia Sotomayor wrote for a unanimous court. “In doing so, she can rely on the merits and force of her ideas, the strength of her convictions, and her ability to inspire others. What she cannot do, however, is use the power of the State to punish or suppress disfavored expression.”
The lawsuit against Meta raises similar concerns about jawboning, despite the settlement’s statement that all parties “freely and voluntarily entered into this Consent Judgment without any degree of duress or compulsion.” Although the NRA case involved the executive branch’s threat of enforcement actions and Meta was facing litigation, both ultimately involve state action.
Meta had warned that the litigation could lead to liability of up to $1.4 trillion. Even if Meta has “voluntarily” entered into the settlement, it is difficult to argue that the threat of losing an existential lawsuit did not factor into its decision. And even though Meta is free to enter into this agreement, it should not be able to waive the First Amendment interests of millions of speakers and users. The settlement is particularly concerning for the broader internet because Meta would pay more if TikTok and YouTube adopt similar restrictions.
This is not to minimize the very real concerns about teenage social media use that the states raise. But the government should address those concerns within the bounds of the First Amendment, and should not jawbone its way around the challenge.
