The Supreme Court is about to decide if children still have free speech rights

It’s not a great time to be a parent. Young people get their information from platforms that did not exist just a few years ago and that many adults have never even heard of. Many parents, who did not grow up using TikTok or even YouTube, do not know how to counsel their children on how to function in a hyper-online world. Jonathan Haidt’s book, The Anxious Generation, which argues that smartphones kicked off an epidemic of mental illness among young people, is a runaway bestseller for a reason.

The Texas state legislature, meanwhile, has a simple solution to this problem. What if we just take away young people’s First Amendment rights?

Last year, Texas enacted the “App Store Accountability Act” (“ASAA”), which would forbid anyone under the age of 18 from downloading any app to a “mobile device” without their parent or guardian’s explicit permission. The law also forces app sellers such as Apple’s App Store or Google Play to verify the age of every single person who uses them, and to determine who is the parent or guardian of every minor who uses an app store.

This law is blatantly unconstitutional. In Brown v. Entertainment Merchants Association (2011), the Supreme Court struck down a California law that prevented minors from purchasing “violent video games” without an adult’s permission. Texas’s ASAA is the same law on steroids. It would prevent young people from downloading any commercially available software without their parent’s permission.

The Court, in other words, is currently weighing one of the most consequential questions of the modern era, and one that will fundamentally reshape public discourse in the United States if laws like the ASAA are upheld: Is freedom of speech obsolete?

For most of American history, the First Amendment’s guarantee that speakers, artists, and even political activists may speak freely was completely unenforced. At the end of World War I, for example, a unanimous Supreme Court held that a politician and union leader could be sentenced to ten years in prison for giving a speech opposing the draft. As recently as 1951, the Supreme Court upheld the conviction of several individuals whose only crime was trying to organize an unpopular political party.

Meanwhile, laws such as the federal Comstock Act targeted a wide range of sexual speech, including great works of art and literature that included sex scenes or that depicted the nude human body.

The Supreme Court didn’t begin to take the First Amendment seriously until the latter half of the 20th century. The Court’s 1964 decision in New York Times v. Sullivan protected newspapers’ right to print what they wish to print, so long as they do not deliberately spread lies or recklessly fail to investigate whether their claims are true. Brandenburg v. Ohio (1969) established that political speech, even hateful or violent rhetoric, is almost always protected by the Constitution. Another line of cases that culminated in Miller v. California (1973) gave broad protection to sexual speech and art.

Although the Court has moved sharply to the right since these cases were decided, most of the justices have largely stuck to the libertarian consensus established by decisions like Sullivan and Miller. On the current Court, a coalition of three Democratic justices and three Republicans has kept free speech alive, despite calls from the Court’s right flank to undo much of the progress of the 1960s and ’70s.

But the internet, and especially the rise of social media, has birthed a new movement that is eager to test this libertarian consensus. Texas’s ASAA is the latest in a string of state laws that challenge free speech online. And at least one of these challenges has succeeded.

That said, the pro-speech coalition on the Supreme Court has thus far held together, at least when states target the rights of adults. In Moody v. Netchoice (2024), for example, the Court considered Texas and Florida laws that attempted to seize control of content moderation at major social media platforms like Facebook, Twitter, and YouTube, and force them to publish conservative voices against those platforms’ wishes. A 6-3 majority rejected the laws.

In its pre-internet decision in Miami Herald Publishing Co. v. Tornillo (1974), the Supreme Court held that the government may not interfere with a newspaper’s “choice of material to go into” the paper. Moody reaffirmed this First Amendment principle, making clear that the same rule applies to more modern forms of communication such as social media. All three of the Court’s Democrats, plus Republican Chief Justice John Roberts and Republican Justices Brett Kavanaugh and Amy Coney Barrett, joined the majority opinion in Moody.

So the good news for free speech advocates is that, so long as the Court’s current membership remains constant, the justices are unlikely to strip away First Amendment protections from adults, or from people who disseminate content for adults.

There are early signs, however, that the Court may be less sympathetic toward the rights of people under age 18.

The Court’s Republican majority has tried to impose a socially conservative vision of sexuality on children and teenagers. In Mahmoud v. Taylor (2025), the Republican justices restricted public school districts’ ability to teach books with LGBTQ themes or characters in their classrooms. And, in Mirabelli v. Bonta (2026), the Republican justices established that public school teachers have a constitutional obligation to out transgender students to their parents.

In the free speech context, meanwhile, the Court has thus far only rolled back children’s and teenagers’ free speech rights in a case involving pornography. In Free Speech Coalition v. Paxton (2025), the Court backed a Texas law requiring many porn websites to determine whether a user is over 18 before they could view the content on that website. This decision effectively overruled a 2004 Supreme Court opinion that struck down a nearly identical law.

It is unclear, however, whether Free Speech Coalition is a sea change in the Court’s approach to children and the First Amendment, or if this case is merely a one-off that applies only to pornographic speech. The most difficult question in Free Speech Coalition was not whether the government may try to prevent minors from accessing pornography — it may — but whether technology actually exists that can age-gate pornographic websites.

The Court’s decision to abandon its 2004 precedent, in other words, may have as much to do with the fact that we now have more sophisticated ways of verifying who is using a particular website than we did 20 years ago, as it does with the current Court’s desire to limit minors’ access to online content.

One sign that the Court may want a much broader contraction of minors’ First Amendment rights is the fairly recent decision in Netchoice v. Fitch (2025). Like Students Engaged, Fitch involved a state law seeking to limit young people’s freedom online — the Mississippi law at issue in Fitch sought to bar minors from creating a social media account without first getting their parents’ permission. The justices allowed this law to go into effect in a one-sentence order that did not explain their reasoning.

Justice Kavanaugh, however, wrote a concurring opinion saying that “under this Court’s case law as it currently stands, the Mississippi law is likely unconstitutional,” but that he voted to allow the law to go into effect anyway.

Does that mean that Kavanaugh wants to overrule the case law that should have barred Mississippi’s law? And will a majority of his colleagues support that effort? The short answer is that we do not know. But the Court’s decision to let this Mississippi law go into effect, even temporarily, suggests that most of the justices may be open to state laws that dramatically restrict what young people can access online.

Broadly speaking, the First Amendment requires the government to show that it has a very good reason to enact any restrictions on free speech, which includes the right to access speech produced by others, and that these restrictions do not restrict speech more than necessary. Though Free Speech Coalition permitted states to age-gate pornographic websites, the Court retained this basic rule that laws restricting free speech must not be too broad.

There’s no way that either Mississippi’s social media law or the ASAA can survive this test. Mississippi justified its social media law by pointing to the tragic death of a 16-year-old boy who died by suicide after someone he met online recorded him engaging in sexual activity, then threatened to send that recording to his family.

But, while preventing teenage deaths is certainly a worthy goal, Mississippi’s law burdens far more speech than is necessary to advance this goal. As an internet industry group argued in its brief to the justices, the state’s law is so broad that it requires young people to obtain their parents permission before “‘discussing their faith in religious forums,’ ‘petition[ing] their elected representatives’ on X, ‘shar[ing] vacation photos’ on Facebook, looking for work around the neighborhood on Nextdoor, or learning how to solve math problems on YouTube” — all of which are activities that are exceedingly unlikely to drive a young person to suicide.

Similarly, the ASAA prevents young people from accessing apps that share Bible verses, that allow them to read news articles about important political events, or that teach them subjects taught in school. Indeed, the law is so broad that it would prevent a public school student who is assigned a book by their English teacher from downloading that book online without their parent’s permission. The law, in other words, would prevent this student from accessing speech that the government requires them to consume.

The ASAA also injures parents who want to take a more permissive approach to their children’ s online activity than Texas permits. In Brown, the Court struck down California’s violent video games law in part because it prohibited young people from buying these games “just in case their parents disapprove of that speech.” Similarly, the ASAA requires parents to approve every purchase their children make in an app store, even if those parents approve of all of those purchases and want their children to have the freedom to explore different things online.

Instead of applying this one-size-fits-all approach to all families with children, Texas could have written a narrower law that requires app stores to give parents the option to approve any purchase that their child makes online, but that also allows parents to give their children more freedom if that’s what those parents prefer.

Both the ASAA and the social media law at the heart of Fitch address very real concerns shared by many parents. Much of the internet is a cesspool of racism, pornography, belligerence, and trolling. Many apps appear to be designed to addict their users. Parents need tools to help them monitor what their children are doing online, and to restrict it if they choose.

But these tools have historically been voluntary. The government has not previously been allowed to require parents to monitor their children’s online behavior in a particular way.

The fundamental question presented by cases like Fitch and Students Engaged is whether the new challenges presented by social media and other online platforms are so great that they require rethinking the First Amendment itself. At least three generations of American children have grown up in a world where they can read books that their parents may not like, hear ideas that their parents might find distasteful, and even explore religious beliefs and other identities that their parents do not share.

Under current law, it’s none of the government’s business if young people consume this sort of content. We will soon find out if this Supreme Court wants to retain this libertarian approach to who is allowed to read what online.