Read the complete article from CNN, Mississippi May Require Age Verification, Parental Consent for Social Media, Supreme Court Says.

According to the article, the U.S. Supreme Court recently allowed Mississippi to enforce a state law that requires the nation’s largest social media companies to verify the age of their users and obtain parental consent for minors, an effort the state said is intended to protect children from online predators.

No Dissent and No Explanation

There were no dissents and the court did not explain its reasoning, as is often the case on its emergency docket.

Kavanaugh Concurrence

Justice Brett Kavanaugh, a member of the court’s conservative wing, wrote a brief concurrence asserting that the Mississippi law is “likely unconstitutional” but said that the internet companies who sued had not “sufficiently demonstrated” that they would be harmed by a temporary order in favor of the state.

A coalition of social media companies that includes Facebook, X and Instagram – and several outside groups – had urged the high court to block enforcement of the state law, arguing it infringed on users’ First Amendment rights. Though the law at issue in the case affects only Mississippians, many other states – both blue and red – have enacted similar requirements in recent years amid growing concerns over privacy and the safety of young people online.

The Electronic Frontier Foundation

The Electronic Frontier Foundation, which is supporting the social media companies in the case, said it is tracking laws in at least 10 other states requiring parental consent or age verification for online services. The group, along with several others that filed a brief in the case at the Supreme Court, described the Mississippi law as a “well-intentioned but fundamentally flawed” effort to protect minors online.

Mississippi officials said the state is responding to high-profile reports of “sextortion” and other online crimes. In one case, a 16-year-old Mississippi boy committed suicide after an Instagram user posing as a female initiated a sexual encounter and then demanded a $1,000 payment under threat of exposing their exchanges on the internet.

“The act requires what any responsible covered platform would already do: make ‘commercially reasonable’ efforts to protect minors – not perfect or cost-prohibitive efforts, but efforts of reasonable care based on a platform’s resources,” Mississippi told the Supreme Court in a brief urging the court to leave the law in place.

NetChoice and the LGBTQ Community’s Arguments

But NetChoice, a trade group representing the social media giants, said the law infringes on the First Amendment rights of users. And several LGBTQ advocacy groups argued that the law would make it harder for gay and lesbian youth to find safe spaces online.

“Online platforms, including social media sites, offer safe spaces for individuals, including youth, to connect with others who share their identities, access information about LGBTQ+ issues and resources, and explore their gender identity and sexual orientation in a supportive environment,” the groups said.

The law, which was enacted last year, imposes $10,000 in penalties per violation as well as possible criminal penalties.

A federal district court temporarily blocked the law’s implementation, but the 5th U.S. Circuit Court of Appeals halted that lower court order, allowing the law to take effect. The Supreme Court’s decision is a temporary one, laying out what happens while lower courts weigh the law’s constitutionality.

A Separate Law in Texas

Earlier this year, the Supreme Court let stand a separate law in Texas that requires age verification for pornographic websites in one of the most closely watched First Amendment cases to arrive at the high court in years. The adult entertainment industry had challenged the law as a violation of the Constitution because it restricted the ability of adults to access protected online speech.

Justice Clarence Thomas wrote the opinion for a 6-3 court, which divided along ideological grounds with the court’s three liberals dissenting.

“The statute advances the state’s important interest in shielding children from sexually explicit content,” Thomas wrote. “And, it is appropriately tailored because it permits users to verify their ages through the established methods of providing government-issued identification and sharing transactional data.”

Discussion Questions

  1. According to the information in this article, the U.S. Supreme Court did not explain the reasoning for its decision in this case. Does that surprise you? In your reasoned opinion, should the Supreme Court be required to explain its reasoning in every case it decides? Explain your response.

    The U.S. Supreme Court often does not explain its reasoning in cases on its emergency docket for several practical and procedural reasons:

    (a) The Nature of the Emergency Docket
    The emergency docket (often known as the “shadow” docket) handles cases that require expedited decisions due to immediate legal or societal concerns, such as requests for stays, injunctions, or temporary relief. These cases typically do not involve full-scale, in-depth legal analysis or oral arguments. Emergency rulings are meant to address immediate issues, like halting the enforcement of a law or delaying an action, rather than resolving the broader, substantive legal questions raised in a case.

    (b) Speed and Efficiency
    Emergency cases often demand quick decisions, and providing a detailed explanation of reasoning could slow down the process, defeating the purpose of addressing urgent matters. Given the need for swift action to avoid potential harm (e.g., a law going into effect or an execution proceeding), the Court may decide that a full written opinion is not necessary for the immediate resolution.

    (c) The Temporary Nature of Decisions
    Many decisions on the emergency docket are temporary orders or stays that preserve the status quo pending further litigation. These are often not final decisions on the merits of the case, but rather stopgap measures. Because these decisions are not final, the Court may not feel the need to provide a full explanation since they are not making a definitive ruling on the underlying legal issues.

    (d) Limited Jurisdiction and Discretion
    The Supreme Court’s role in handling emergency matters is often more about procedural decisions than substantive ones. For example, the Court might simply decide whether to allow an appellate court's ruling to take effect or whether to grant a temporary reprieve, without delving into the larger constitutional or legal questions. The Court has broad discretion over which cases it chooses to hear and can decide that an explanation is not warranted for certain cases, especially when it is dealing with emergency procedural issues.

    (e) Avoiding Precedent from Quick Decisions
    A major concern with offering detailed reasoning on emergency docket cases is that such decisions are often based on limited information and may not fully explore the legal complexities of a case. If the Court were to explain its reasoning in these contexts, those explanations could unintentionally create precedent or guide future cases. The Court may avoid this to prevent issuing opinions based on incomplete records, where the issues have not been fully developed or argued.

    (f) Strategic and Practical Considerations
    Often, the emergency docket involves highly politicized or controversial issues where a detailed opinion could generate significant public or political backlash. By providing a simple ruling without a detailed explanation, the Court may aim to avoid adding fuel to debates or heightening public scrutiny.

    (g) Limited Scope of Review
    Many emergency docket cases are decided based on a very narrow legal question (e.g., whether to stay an execution or block a specific enforcement action) and do not necessarily require comprehensive analysis. The Court’s decision might be as simple as determining whether an immediate action is warranted to prevent harm, without needing to discuss the broader legal questions in full.

  2. As the article indicates, Justice Brett Kavanaugh wrote a brief concurrence in supporting the Court’s decision but asserted that the Mississippi law is “likely unconstitutional.” Why would any justice vote to allow an unconstitutional law to take effect?

    Justice Kavanaugh’s concurring opinion could provide guidance for a future Supreme Court decision on the more substantive legal question of whether Mississippi’s law represents an unconstitutional violation of the First Amendment (i.e., whether it violates free speech rights). The current case addresses the specific question of whether Mississippi’s state law requiring the nation’s largest social media companies to verify the age of their users and obtain parental consent for minors should be stayed—not the underlying question of whether the law is unconstitutional. That issue will likely be resolved by the Court at a future time.

  3. As indicated in the article, a coalition of social media companies, including Facebook, X, and Instagram, had urged the high court to block enforcement of the state law, arguing it infringed on users’ First Amendment rights. In your reasoned opinion, does the Mississippi law represent an unconstitutional violation of users’ First Amendment rights? Why or why not?

    This is an opinion question, so student responses may vary. As noted previously, Mississippi’s law requires the nation’s largest social media companies to verify the age of their users and obtain parental consent for minors, an effort the state said is intended to protect children from online predators. This could be construed as a reasonable “time, place, and manner” restriction on speech. Additionally, courts have traditionally subjected both companies and children to more restricted speech, rationalizing that in terms of companies, commercial speech is not as entitled to free speech protection as individual speech (especially political speech), and that in terms of children, the need for their protection can dictate restrictions on their speech.