The SAFE Act is intended to address the ostensibly harmful effects of too much social media on minors—particularly teenagers—by imposing age requirements on users’ access to so-called “addictive feeds”: website design features that increase user engagement by offering content customized to a user’s past browsing habits and preferences. The SAFE Act prohibits social media platforms from offering such tailored feeds to anyone under 18 without parental consent, instead limiting users to chronological content from other users they already follow, or feeds of generally popular material. A platform may not offer an addictive feed to any user unless the platform has first (1) determined, using a “commercially reasonable and technically feasible” method, that a user is not a minor; or (2) obtained verifiable parental consent.
The SAFE Act likely violates the First Amendment, especially when considered in light of the Supreme Court’s recent opinion in Moody v. NetChoice, as well as several subsequent lower court opinions applying Moody. As we discuss below, some of those constitutional flaws are a fact of current technology and likely unavoidable, while others flow from the state’s attempt to force social media websites to adopt or abandon certain design features. We offer the following analysis and recommendations, with the caveat that nothing here changes our conclusion that the SAFE Act is unconstitutional.
