In the last few years, state legislatures across the nation have introduced age verification measures. While the nuances of the age verification mandates are mixed, and some never progress past introduction, a lengthy legal battle is standard. Mississippi’s social media age verification law, House Bill (HB) 1126 of its 2024 Regular Session, is one of the latest attempts to “solve” the woes that can accompany internet use among young people and seems bound for the same fate as its predecessors who were blocked in court on the basis of their unconstitutional approach.

The Mississippi law’s stated goal is well-intentioned: protecting children online. Its methods, however, create an assortment of privacy and data risks inherent to the age verification process as well as limited success actually shielding kids from adult content. Moreover, courts have found that age verification laws create barriers to protected speech online and jeopardize First Amendment rights. None of these detriments are unique to the Mississippi law and have been cited as the reason for courts overturning or blocking similar laws in Arkansas, California, and Ohio to name a few. Implementation is not guaranteed, but tax payer dollars spent on endless litigation between state governments and tech companies that have to adhere to a patchwork of laws across the country certainly is.

Recent events in the ongoing battle over Mississippian’s free speech and privacy provided insight to the U.S. Supreme Court’s view of such measures. This month, the Supreme Court denied an emergency application from NetChoice, a trade association representing tech companies, for a temporary stay on HB1126. While the denial was a setback, Justice Kavanaugh wrote in his concurrence, “To be clear, NetChoice has, in my view, demonstrated that it is likely to succeed on the merits—namely, that enforcement of the Mississippi law would likely violate its members’ First Amendment rights under this Court’s precedents….In short, under this Court’s case law as it currently stands, the Mississippi law is likely unconstitutional.” Kavanaugh’s prediction for the future of HB1126 underscores the undeniable Constitutional issues that emerge when states require their citizens to present an ID for access to the internet.

What options are available to parents who want to feel empowered to walk alongside their children in navigating the internet and social media? Or lawmakers who want to help keep kids safe online, but resist the notion that turning over personal information and blocking off social media sites is the best way to do it? The best answer is to safeguard and promote a free market and both awareness and consistent application of existing laws.

In “A Free Market Approach to Child Protection and Guidance,” the Pelican Institute’s senior vice president Erin Bendily draws upon Louisiana’s Children’s Code, state statutes, and state agency regulations to apply the profound rights and responsibilities of a parent to the digital age. Louisiana’s longstanding laws grant parents authority and responsibility over their children. Parental autonomy is a foundational aspect of policies in areas of healthcare, education, and, when applied correctly, technology. Protecting children from harm online is a duty best fulfilled by parents or other legal guardians, full stop, particularly when parent-purchased technology devices are being used at home. Existing laws underscore this responsibility.

Louisiana Children’s Code Article 603 includes in the definition of child neglect “the unreasonable failure by a parent or caregiver to provide a child with…care…leading to the child’s physical, mental, or emotional health and safety being substantially threatened or impaired.” Furthermore, R.S. 14:93 provides that such neglect could constitute cruelty to juveniles, which includes the “intentional or criminally negligent neglect by anyone seventeen years of age or older of any child under the age of seventeen whereby unjustifiable pain or suffering is caused to said child.”

Keeping kids safe in the digital world can seem daunting, but parents can find tremendous support in the free market—particularly in areas as complex and ever-changing as the internet and social media. When families make their needs known, businesses, eager to respond to consumer needs and demands, step up to the plate. Innovations to help parents monitor and protect their children online emerge daily. There is no shortage of tools to answer the needs of parents who take the safety of their children seriously.

The application of the state’s existing laws to a contemporary issue is one that officials with a reverence for both the law and the free market can follow. Parental autonomy doesn’t stop just because new technology is in the picture, nor does the free market cease to answer the needs of the consumer just because these needs have to do with sensitive areas like social media use amongst teens.

The fate of the Mississippi law remains unknown, for now, but if Justice Kavanaugh’s concurrence is any indication, it’s bound for the same ruling as previous attempts to answer a larger issue with a hasty solution. States considering legislation like that of Mississippi can avoid the cost and consequences of an ongoing legal battle by trusting parents, applying existing laws, and leveraging the power of the market to do what it does best.

Links to Learn More

Parental Rights and Responsibilities in Louisiana: A Free Market Approach to Child Protection and Guidance – Pelican Policy

Mississippi’s Age Verification Law Could Impact Us All | Cato

The End of Online Anonymity? Age Checks Spread Worldwide.|Reason