Saturday, April 20, 2024

Silbaugh & Caplan-Bricker: "Regulating Social Media Through Family Law"

Katharine Baird Silbaugh (Boston University School of Law) and Adi Caplan-Bricker (Boston University School of Law) has recently posted to SSRN their article, Regulating Social Media Through Family Law.  Here is their abstract:

Social media afflicts minors with depression, anxiety, sleeplessness, addiction, suicidality, and eating disorders. States are legislating at a breakneck pace to protect children. Courts strike down every attempt to intervene on First Amendment grounds. This Article clears a path through this stalemate by leveraging two underappreciated frameworks: the latent regulatory power of parental authority arising out of family law, and a hidden family law within First Amendment jurisprudence. These two projects yield novel insights. First, the recent cases offer a dangerous understanding of the First Amendment, one that should not survive the family law reasoning we provide. First Amendment jurisprudence routinely defers to parental decisions, in contrast to emerging case law. Second, existing legislation fails to leverage family law to bypass First Amendment barriers. Lawmakers should refocus on legislating to empower parents to supervise their children meaningfully on social media, instead of focusing on harmful content itself. In the real world, parents enjoy nearly unlimited authority to decide how much privacy to afford a minor, what ideas may reach them, and who may contact them. The law supports parents in these efforts, and it can do so in the social media context as well. But it is essential for the state to identify this as the interest behind regulation, in order to survive First Amendment challenges. We conclude by proposing a Parental Decision-Making Registry that could reduce the enormous power of social media companies in the lives of minors while resting securely on law of the parent-child relationship.

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