Where does free speech end and protecting kids begin? SC trying to find out.

What’s more important: Children’s safety or the First Amendment? That’s where the battle lines are being drawn over social media access in South Carolina.

People under 18 may soon be required to have parental consent to be on social media apps like Snapchat, Instagram, X (Twitter) and others. A bill moving through the S.C. State House has sparked tension between legal experts, technology companies, parents and lawmakers, and has the groups debating the responsibility the state has to protect children and teens from online danger, and how far they should go.

In 2023, Arkansas passed a similar bill to the South Carolina measure. A federal judge blocked it before it could become law, citing it was too vague, overbroad and violated First Amendment rights.

Joshua Malkin, ACLU legal fellow in South Carolina, said if the South Carolina bill’s language did not change, there’s a good chance the proposed South Carolina law could have a very similar fate to the Arkansas one.

“We are dedicated to protecting the constitutional and civil rights of South Carolinians and this bill raises grave First Amendment concerns,” Malkin said in an interview. “Young people have First Amendment rights and there is a lot of constitutionally protected speech on the internet. So the government saying that parents have to verify their child’s age and must potentially prevent them from a lot of constitutionally protected speech definitely raises First Amendment concerns.”

Greg Gonzalez, legislative counsel for the Foundation for Individual Rights and Expression, said the bill flies in the face of numerous Supreme Court case laws that establish minors have strong free speech rights of their own. He also emphasized that the bill as it is written may not stand a good chance of surviving, if passed.

“The government cannot impose these kinds of regulations on kids’ use of social media,” Gonzalez said at the committee hearing. “This principle is illustrated in Brown versus Entertainment Merchants Association, which is the latest of a long line of cases defining government’s limited authority to regulate minors access to speech.”

Sen. Katrina Shealy, R-Lexington, said she disagreed with Gonzalez. Children need to be monitored when they’re online, she said. While she emphasized how “wonderful” free speech was, there needs to be protection.

“I think when you’re six years old, eight years old, 10 years old, there’s a difference between free speech and you know, they can go out and stand on the front porch and scream, ‘hallelujah,’ I don’t care,” Shealy said.” But being online and having access to porn, or social media accounts where they can be lured by someone to meet them down at the mall, or do all these other things. It’s completely different than free speech.”

Other members of the committee, including Sen. Shane Massey, R-Edgefield, asked what effect would this bill have on educators teaching about online safety and what companies qualify as “social media” companies in the bill.

Patrick Kelly, director of government affairs for the Palmetto Teachers Association, urged lawmakers to pass the bill because of the addictive and negative effects social media has on children. Kelley said over the course of his career as a teacher, he has seen the issues play out first hand.

“I first noticed this trend after the tragic shooting in Parkland, Fla., several years ago when my students were watching first-person video accounts on social media platforms of students that were in [Marjorie Stoneman Douglas] high school the day of the shooting,” Kelly said, referencing the threat social media poses to school safety.

Kelly said social media platforms has also been a massive drain on school resources because administrators are constantly investigating posed threats.

“While claims will be and have been made that social media posts are protected speech, free speech is not an absolute right.”

He referenced the Brandenburg test, citing speech is not protected if it is likely to incite imminent lawless action, and that social media routinely allows the ability to do so.

“You don’t get free speech when you’re born. You know your parents are supposed to train you in these things,” Shealy said. “That’s probably what’s wrong with a lot of the children today, why we have children in the Department of Juvenile Justice, and why we have all these other issues, is because free speech and parents don’t do their part.”

The bill, which passed the House and is moving through the committee process for the Senate, would require companies to make commercially “reasonable efforts” confirming the social media account users are at least 18-years-old or get parental consent. The bill was introduced by House Judiciary Chairman Weston Newton, R-Bluffton.

Wednesday in the Labor, Commerce and Industry Committee, advocates for the bill spoke about the dangers of social media for young people, especially children and online addiction for teens. However, multiple people urged lawmakers to change the bill’s language and take out the parental consent requirement, specifically citing First Amendment concerns.

The bill remains in the committee until lawmakers vote to move it to the Senate floor.

“I empathize with a lot of the speakers who kind of spoke to the harms of social media and to the legislators who raised really good questions about the harms of social media and I mean the problem is you can not suppress constitutionally protected speech in order to prevent children from seeing what might not be constitutionally protected speech,” Malkin said.