Warning: NY & Minnesota’s Social Media Warning Label Laws Are Unconstitutional

Free Speech

from the the-moral-panic-is-spreading dept

Both New York and Minnesota just passed laws requiring social media platforms to slap warning labels on their sites—warning labels based on zero scientific evidence, likely to be struck down as unconstitutional compelled speech, and designed solely to let politicians pretend they’re “protecting children” while actually making their lives worse.

You’d think lawmakers would learn.

When Texas passed a ridiculous law requiring adult websites to add “health warning labels” based on no science at all, even the notoriously ridiculous Fifth Circuit—a court that never met a garbage internet law it didn’t like—said “whoa, the mandated health warning part’s obviously unconstitutional.” The court explained that compelling websites to display the state’s preferred message about content when there’s no scientific consensus is completely out of line:

We are not scientific journal editors, much less social scientists, behavioral experts, or neurologists. The courts generally are not the place to hash out scientific debate, particularly not on so contentious a topic as the impacts of engaging with pornography. Experts must do that in academic journals, studies, and presentations. Therefore, the record leaves us with no option but to declare that the health impacts of pornography are currently too contentious and controversial to receive Zauderer scrutiny.

But apparently, NY and Minnesota lawmakers saw that ruling and thought: “Let’s do the exact same thing, but for social media!”

NY state Sen. Andrew Gounardes, serial cosplayer of “save the children!” tech panics, has now convinced the NY legislature to rubber-stamp a cartoonishly stupid and unconstitutional “think of the children” law that will require social media to slap warning labels all over their sites. He’s so hyped on his own grandstanding he can’t even be bothered to name or link the bill in his social posts—which, naturally, are on those supposedly dangerous platforms he’s “saving” us from.

While neither Gounardes nor Gothamist could be bothered to tell you the actual bill, it’s right here: Senate Bill S4505.

The New York bill requires platforms to display a warning that will be written by the “Commissioner of Mental Hygiene” based on their own reading of the science. That text may be adjusted annually based on the whims of the Commissioner. The Commissioner also gets some fun product management responsibilities, including getting to tell social media websites where and how the warning labels must appear, including how often they will see them when they scroll. This warning will appear whenever anyone in New York accesses a social media platform—not just minors, but everyone.

Minnesota’s version, HF 2, is similar. It requires platforms to “conspicuously” display a warning that will be written by the Commissioner of Health and will be visible “each time a user accesses social media” and can only be removed once a user “acknowledges the potential for harm and chooses to proceed to the social media platform despite the risk.” That’s making claims right there that are just not supported by the evidence.

Let’s be crystal clear about why this is unconstitutional. The Supreme Court has established through cases like Zauderer that the government can only compel commercial speech (like warning labels) when the compelled disclosure is “purely factual and uncontroversial” and relates to preventing consumer deception. Neither condition applies here.

First, the claim that social media is inherently harmful is not “purely factual”—it’s a highly contested scientific and policy question. Second, social media platforms aren’t deceiving anyone about what their services are. Users know they’re using social media. This isn’t like requiring calorie counts on food or interest rates on loans—facts that consumers might not otherwise know.

And before someone makes the inevitable comparison: no, these are nothing like cigarette warning labels. Here’s the crucial difference that even first-year law students understand: cigarettes are a physical product you ingest. Social media platforms are forums for speech. The government can require factual warnings on physical products based on scientific consensus about health risks of the products itself. But social media platforms aren’t selling a product that users consume—they’re providing a forum for users to speak, read, associate, and engage in core First Amendment activities.

Imagine if the government required bookstores to post warnings that “reading may be addictive and harmful to your mental health” or forced newspapers to print disclaimers that “consuming news may increase anxiety.” That’s essentially what these laws are doing—compelling platforms to denounce the very speech they host.

And yes, lots of people (including the supporters of these bills) will point to the former Surgeon General’s report calling for similar warning labels as proof of their necessity. Yet, as we pointed out at the time, the then Surgeon General’s recommendation appeared to be based on very strong motivated reasoning, including ignoring the details of a report from his own office.

That report, titled “Social Media and Youth Mental Health,” actually stated: “Social media can provide benefits for some youth by providing positive community and connection with others who share identities, abilities, and interests.” It specifically noted that social media helps LGBTQ+ youth find community, provides mental health resources, and enables creative expression. The report acknowledged that the relationship between social media and youth mental health is complex and individualized—not the simplistic “social media bad” narrative these warning labels promote.

Even more damning: the report admitted “We have gaps in our full understanding of the mental health impacts posed by social media,” and:

Seven out of ten adolescent girls of color report encountering positive or identity-affirming content related to race across social media platforms. A majority of adolescents report that social media helps them feel more accepted (58%), like they have people who can support them through tough times (67%), like they have a place to show their creative side (71%), and more connected to what’s going on in their friends’ lives (80%). In addition, research suggests that social media-based and other digitally-based mental health interventions may also be helpful for some children and adolescents by promoting help-seeking behaviors and serving as a gateway to initiating mental health care.

None of that is covered or even mentioned in this mad dash for warnings.

The research on warning labels for social media is essentially non-existent. Unlike decades of research on tobacco warnings, there’s no evidence that slapping “this might be bad for you” on Instagram will do anything except fuel moral panic. Worse, these labels might backfire by encouraging parents to ban social media entirely rather than teaching kids digital literacy and healthy online habits.

Think about it: if your kid needs to research LGBTQ+ resources, connect with other kids with rare medical conditions, or find mental health support, these warning labels tell parents that those connections are inherently dangerous. That’s not protecting kids—it’s isolating them.

But, again, the most important part in all of this is that such labeling requirements, based on zero actual scientific evidence, is a fundamental constitutional violation, compelling speech from social media companies for no reason other than to make busybodies feel like they’re making a difference.

Courts have been clear about this. When California tried to require warning labels on violent video games, the Supreme Court struck it down in Brown v. Entertainment Merchants Association, noting that the state couldn’t prove video games caused harm to minors. The Court emphasized that “the State must specifically identify an ‘actual problem’ in need of solving” and that the evidence must be “compelling.”

Here, there’s even less evidence of harm than there was for video games. In both cases, there were plenty of questionable studies to cite, but all were quite contested.

These laws will face First Amendment challenges, and they’ll lose. But in the meantime, taxpayers will foot the bill for defending obviously unconstitutional laws while politicians like Gounardes get to pretend they’ve done something meaningful for children. They haven’t. They’ve just wasted everyone’s time and money on performative nonsense that does nothing to actually help kids navigate the digital world safely and productively.

The real tragedy is that while politicians waste time on unconstitutional warning labels, they’re ignoring actual solutions that could help kids online: digital literacy education, better mental health resources, privacy protections, and giving users more control over their own experiences. But those require actual work and don’t generate easy headlines about “standing up to Big Tech.”

So instead we get this: warning labels that violate the First Amendment, ignore the science, and treat social media as inherently toxic rather than as a tool that can be used well or poorly. It’s lazy governance dressed up as child protection, and one hopes the courts will see right through it.

Filed Under: 1st amendment, andrew gounardes, compelled speech, mental health, minnesota, moral panic, new york, surgeon general, think of the children, warning labels, zauderer