As far as I know, Ginsberg v. New York, 390 US 629 - Supreme Court 1968 (See GINSBERG v. NEW YORK, 390 U.S. 629 (1968) | FindLaw ) is still good law.
If I am wrong, please let me know.
Ginsburg is an obscenity case which is an exception to First Amendment rights. Even though the material wasn’t obscene vis a vis adults The court found that “The State has power to adjust the definition of obscenity as applied to minors”,
Outside of obscenity the regulation is impermissible See, Video Software Dealers Ass’n v. Maleng*, 325 F. Supp. 2d 1180, 1185–86 (W.D. Wash. 2004) noting that “the decision in Ginsberg is based on the fact that sexually-explicit material is not entitled to the protections of the First Amendment. The statute at issue in Ginsberg did not create an entirely new category of unprotected speech: rather, it adjusted the Roth definition of obscene material to capture that which is of sexual interest to minors.”
For those CCers that don’t practice constitutional law…
https://www.findlaw.com/legalblogs/law-and-life/are-movie-ratings-legally-enforceable/
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Good info for those who don’t practice law. Bottom line here is that regulating FB or Insta and other social media is VERY tricky because of First Amendment issues.
One other thing comes to mind here. It’s the 1950’s comic book panic. As one author noted “Countless religious and patriotic organizations organized book burnings to set comics aflame, and leading politicians held congressional hearings where William Gaines, the owner of EC Comics, publisher of the gory Tales From the Crypt and the satiric Mad comic book (later retooled as a magazine),was grilled as if he were a mobster.”
While one can argue definite differences there is a certain c’est plus ca change thing going on here.
I said “The Motion Picture Association’s ratings aren’t laws–you’re right. However,it’s my understanding some states and/or localities have laws restricting which movies minors can see. Those are enforceable.”
You replied "I don’t know of any such laws in any US state or city. " Well, New York has such a law. You said any such law would be unconstitutional “unless it involved something considered an obscenity.”
But there are certainly laws restricting what minors can see and the definition of what is obscene for minors is different than what is obscene for adults and Ginsberg says that’s okay.
In New York:
A person is guilty of disseminating indecent material to minors in the second degree when:
- With knowledge of its character and content, he sells or loans to a minor for monetary consideration:
(a) Any picture, photograph, drawing, sculpture, motion picture film, or similar visual representation or image of a person or portion of the human body which depicts nudity, sexual conduct or sado-masochistic abuse and which is harmful to minors; or
(b) Any book, pamphlet, magazine, printed matter however reproduced, or sound recording which contains any matter enumerated in paragraph (a) hereof, or explicit and detailed verbal descriptions or narrative accounts of sexual excitement, sexual conduct or sado-masochistic abuse and which, taken as a whole, is harmful to minors; or
- Knowing the character and content of a motion picture, show or other presentation which, in whole or in part, depicts nudity, sexual conduct or sado-masochistic abuse, and which is harmful to minors, he:
(a) Exhibits such motion picture, show or other presentation to a minor for a monetary consideration; or
(b) Sells to a minor an admission ticket or pass to premises whereon there is exhibited or to be exhibited such motion picture, show or other presentation; or
(c) Admits a minor for a monetary consideration to premises whereon there is exhibited or to be exhibited such motion picture show or other presentation; or
- Knowing the character and content of the communication which, in whole or in part, depicts actual or simulated nudity, sexual conduct or sado-masochistic abuse, and which is harmful to minors, he intentionally uses any computer communication system allowing the input, output, examination or transfer, of computer data or computer programs from one computer to another, to initiate or engage in such communication with a person who is a minor.
Disseminating indecent material to minors in the second degree is a class E felony.
I agree that my original language was too sweeping; I admitted that.
Agree that there can be obscenity laws vis a vis minors. But the whole point of your initial post was “ And why are we allowing FB or instagram to determine what IS the appropriate age to use social media? Isn’t that an issue that should be a matter of public policy”. My responses ( which jumps off with the point that for R and Pg….almost all of which are not obscene even under lower minor standards ….the government does not and cannot control things and no laws exist to do so) are meant to answer that question.
The reason is that except for obscenity it can’t be a matter of public policy under the law as it exists today. Importantly here the issues that are concerning people with social media are not obscenity related content. So regulation is very very difficult.
I believe it is an FTC regulation that if the site is open to those under 13, the owner of the site has to make certain disclosures and reports, so all the companies running the sites just require the user to be 13. They will not set up an account if you don’t day you are at least 13, so all the kids lie to set them up.
I regulated my kids and they did not have accounts until they were 13 (and one is 10 months younger than her sister, so it was torture for her) At the time, we had one family computer so pretty easy to regulate. I also had the rule that they couldn’t add any friends who they had not met in person. The younger one added a friend of her sister’s, but she hadn’t met him in person so off he went. They didn’t even have phones until they were 11 when Santa brought them, but even then they were flip phones with minutes purchased on a card so very limited.
My FB was hacked in August and I haven’t been on since then. There are a few things I miss but I’m trying to decide if it is worth it to rejoin. Just today I was told to follow a group on FB and I had to tell them I couldn’t. Old school, I know. I’ve never done Twitter or Insta=anything. I still read the paper that is delivered to my house every day too.
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The kids definitely lie. Often with full parental approval. And what is the company gonna do to prevent it? No one wants to tell them to collect proof of age stuff like a social security number (can you imagine? Oy!)
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I’m aware. Just pointing out that as a separate social media vehicle, kids don’t use it.
It would be pretty easy to ensure kids really are 13:
have a parent vouch that whoever signs up is above 13 and, if 13-18, screen what the algorithm can show.
How would you know it’s really a parent? Parent would need to enter credit card number (often used as a verification system anyway) and would receive a text on a phone number (not the teen’s) and/or an email (parent email) with a code to enter.
Pretty basic. Many online business secure transactions this way.
And yes, SOME parents would go ahead, but at least it’d be a limit for teens whose parents won’t bother or whose parents are aware. 
You gotta start somewhere
In addition, FB (i.e., FB, insta, whatsapp) should be broken because it’s become a monopoly (the problem on Monday showed that clearly) and we have anti trust laws. Remember* the break up of the Bell system? It wasn’t about what people said.
(*from life or history texts 
)
Finally, any toxic product needs to be either removed from market or made un-toxic. That’s on FB.
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There is no requirement that businesses do this. If the government wants to regulate this (more than just requiring FB post the requirement that one be 13) they need to regulate it. Maybe they will after these hearings.
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Potential modifications to section 230 can’t be characterized as innocuous when it could mean Facebook would be liable for what people post. Regardless, though, they are reaching far beyond 230, according to the data thief:
“Facebook wants to trick you into thinking that privacy protections or changes to Section 230 alone will be sufficient. While important, they will not get to the core of the issue, which is that no one truly understands the destructive traits of Facebook except for Facebook. We can afford nothing less than full transparency.”
And Facebook is different than other big tech in that it is deeply personal for the senators:
“Mark Zuckerberg may be one of the richest people in the history of the world,” Mr. Blumenthal said. “But today Frances Haugen showed that one person can stand up to that kind of power and make a difference.”
Zuckerberg could barely contain his contempt for this woman and the nonsense she spewed. NPR even seemed to join his side:
“…hundreds of studies published over decades on children and adolescents’ media use and well-being…have found few correlations. “It’s mostly null,” Odgers says.”
“The Facebook research was not peer-reviewed or designed to be nationally representative…So the finding does not describe a random sampling of teenage girls, or even all the girls in the survey. It’s a subset of a subset of a subset.”
Who said “innocuous.” I didn’t. I said “Regulate? Sure.” Period. End of sentence.
Your statement said a faction of Congress was out to destroy FB, which I said is hyperbole. Congress isn’t about to “destroy” private companies.
I doubt Congress will get anything done at all. But if FB and/or other tech companies faced some additional liability from changes in Section 230, then we’re just talking about lowering their EPS. maybe.