Warning Labels: Coming Soon to a Social Media Platform Near You?

Murthy’s recommendation for warning labels on social media platforms echoes many of the concerns expressed in a report published by his office last year, titled “Social Media and Your Mental Health.”

While the report conceded that “more research is needed to fully understand the impact of social media,” it also concluded “the current body of evidence indicates that while social media may have benefits for some children and adolescents, there are ample indicators that social media can also have a profound risk of harm to the mental health and well-being of children and adolescents.”

“Over the last decade, evidence has emerged identifying reasons for concern about the potential negative impact of social media on children and adolescents,” the report stated. “A longitudinal cohort study of U.S. adolescents aged 12–15 that adjusted for baseline mental health status found that adolescents who spent more than 3 hours per day on social media faced double the risk of experiencing poor mental health outcomes including symptoms of depression and anxiety.”

The threshold of three hours of social media use per day is an interesting dividing point, given that, according to the report, as of 2021, “8th and 10th graders now spend an average of 3.5 hours per day on social media.”

“In a unique natural experiment that leveraged the staggered introduction of a social media platform across U.S. colleges, the roll-out of the platform was associated with an increase in depression (9% over baseline) and anxiety (12% over baseline) among college-aged youth,” the report added. “The study’s co-author also noted that when applied across the entirety of the U.S. college population, the introduction of the social media platform may have contributed to more than 300,000 new cases of depression. If such sizable effects occurred in college-aged youth, these findings raise serious concerns about the risk of harm from social media exposure for children and adolescents who are at a more vulnerable stage of brain development.”

On the other hand, the same report noted some benefits young people derive from social media use, including “providing positive community and connection with others who share identities, abilities, and interests.”

“(Social media) can provide access to important information and create a space for self-expression,” the report added. “The ability to form and maintain friendships online and develop social connections are among the positive effects of social media use for youth. These relationships can afford opportunities to have positive interactions with more diverse peer groups than are available to them offline and can provide important social support to youth. The buffering effects against stress that online social support from peers may provide can be especially important for youth who are often marginalized, including racial, ethnic, and sexual and gender minorities.”

The report cited survey data in which a majority of adolescents reported “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,” the report stated.

Whatever appeal the idea of adding warning labels to social media platforms might have for supporters of the idea, there’s a significant difference between the warning labels affixed to packs of cigarettes (to which Murthy analogized the proposed social media warnings) and the warning labels envisioned for social media platforms: Cigarettes are not speech or expressive conduct protected by the First Amendment.

For the same reasons the warning labels Texas wants to require adult websites to carry likely won’t survive court scrutiny, the courts are liable to be skeptical of social media warning labels.

As noted by Techdirt’s Mike Masnick, when California tried to force labeling requirements on the producers of video games, the case, Brown v. Entertainment Merchants Association, did not end well for the government. The court not only ruled against the state, but held the law lacked a foundational “compelling interest” to justify the state’s proposed regulation.

“California cannot show that the Act’s restrictions meet a substantial need of parents who wish to restrict their children’s access to violent video games but cannot do so,” Justice Antonin Scalia wrote for the majority. “The video-game industry has in place a voluntary rating system designed to inform consumers about the content of games…. This system does much to ensure that minors cannot purchase seriously violent games on their own, and that parents who care about the matter can readily evaluate the games their children bring home. Filling the remaining modest gap in concerned parents’ control can hardly be a compelling state interest.”

The courts may feel differently about social media, of course. They may find the government’s claims of harm and evidence thereof more compelling in this context than in the context of violent video games. Either way, what the courts likely won’t buy is an analogy between a product that is physically consumed and contains an identified addictive substance like nicotine and a platform people use to ‘consume’ and create expressive material.

Many other questions come to mind concerning Murthy’s proposal, of course. Among them, practical questions of design and display (does every page and/or post on a platform need to carry the warning?); about the substance of the warnings (what will these labels say, exactly, and how well-founded will their underlying claims be?) and potential efficacy (do these warning labels offer any prospect of discouraging harmful behavior on the part of the user?).

Should Congress act on Murthy’s proposal, this much is certain: Any law requiring warning labels on social media platforms will face a fierce, well-funded legal challenge.

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