Massachusetts Legislature mulls bill prohibiting student cell phone use in public schools and requiring age verification to use social media

Last month, the Massachusetts State House passed a bill (H. 5366) that would have the Commonwealth join fifteen other states in banning cell phones in public schools statewide and twenty-seven other states in requiring all users—including adults—to verify their age to use social media.  

Proponents of these policies argue that they are a step in the right direction in curbing compulsive cell phone and social media use among children and teens, which may have negative impacts on mental health and cognitive development. 

On the other hand, the age verification component of the bill has faced criticism at both the state and national level, with opponents describing the age verification requirement as draconian and legal advocacy groups arguing that the requirement would violate the First Amendment.

H. 5366 and S. 2581– Text and Legislative History

Establishing the cell phone ban, H. 5366 and its senate counterpart, S. 2581, require each school district to “have a policy to prohibit student use of personal electronic devices during the school day.” That policy must include “options for secure storage” of student cell phones and “at least 1 method” for students and parents, guardians, and caregivers to contact each other during the school day. The bills also direct the Department of Elementary and Secondary Education to “provide guidance, recommendations and a model policy for school districts to prohibit student use of personal electronic devices during the school day.” 

Implementing the age verification scheme, the bills require social media platforms to use an “age assurance or verification system.” Platforms must then use information gathered by that system to prohibit all minors under fourteen-years-old and allow fourteen and fifteen-year-olds to make accounts only with parental consent. The bills also require platforms to, upon request, provide parents the data submitted by their fourteen and fifteen-year-old children during the age verification process. 

The State House revised, and subsequently passed again, the provision requiring platforms to share data with parents. The original bill required platforms to provide parents all age verification data upon request, including data that could expose a minor’s true gender identity or sexual orientation. This provision was met with immediate opposition by organizations representing the LGBTQ+ community, who argued that the requirement for platforms to provide parents their children’s age verification data would risk outing queer children not yet ready (or safely able) to reveal their gender identity or sexual orientation to their parents. H. 5366, the revised bill, attempts to address these concerns by prohibiting social media platforms from sharing “any data related to a minor user and their LGBTQ+ protected status.” Though this amendment addressed one of the opponents’ concerns, those opponents argue that the change does not address structural issues—constitutional and data privacy concerns, which are discussed in detail below—inherent to age verification schemes.  

Legal Concerns and Opposition 

The cell phone prohibition provides another avenue through which Massachusetts students could be subject to discipline. The bills dictate that the model policy promulgated by the Department of Elementary and Secondary Education must include “enforcement provisions to ensure student compliance,” but those enforcement provisions must stop short of expulsion or suspension of offending students. Despite the guardrail in the bills preventing the most severe forms of discipline, students could be subject to substantial discipline under the model cell phone prohibition policy, ranging from detention to in school suspension.  

The age verification scheme also raises significant free speech concerns under the federal and state constitutions.  

A nearly identical scheme in Florida narrowly survived judicial review after a year of litigation. In Computer & Communications Industry Association et al v. Uthmeier, the Eleventh Circuit Court of Appeals held in a 2-1 decision that Florida’s age verification scheme constituted a permissible content-neutral restriction on speech because it imposes a “modest” burden on adult speech while serving the public interest in protecting children from addictive social media platforms. The dissenting justice in this case excoriated the majority opinion, describing the law as “plainly unconstitutional on its face” because it, in fact, regulates speech based on its “social” content and that there are less restrictive means for achieving the goal of protecting children, like requiring the platforms to make effective parental controls easily accessible. 

The dissent in Computer & Communications Industry Association et al. echoes the legal concerns raised by the American Civil Liberties Union and the Electronic Frontier Foundation. One such issue raised by the dissent and advocates alike is that age verification schemes eviscerate anonymity on social media platforms, chilling speech. As the dissent notes, “some very significant political speech—think the Federalist Papers, for instance—has historically occurred anonymously (or pseudonymously).” The connection between anonymity and speech is simple: if an individual wishes to oppose government action, they are much safer doing so if they cannot be subsequently identified by the government. This fear of being found out is not abstract, either. Earlier this year, the Department of Homeland Security demanded that major tech companies hand over records of users who run accounts that track or comment on Immigrations and Customs Enforcement (ICE). Under an age verification scheme, those records would include a government issued identification or facial recognition data submitted by the user to gain access to the platform. H. 5366 may cause many individuals who would otherwise engage in sensitive speech to stay silent.  

Looking Ahead 

Though the bill still needs to be approved by the Senate and signed by the Governor before becoming law, both the Legislature and the Governor are motivated to pass legislation banning cell phone use in schools and requiring age verification in social media. Submitting her own proposal to the Legislature, Governor Healey stated, “As I promised to do at the beginning of the year, this bill also proposes new social media protections for children under 18 years old . . . to address the demonstrated negative impacts that unrestricted social media access can have on young people.” The Governor’s proposed bill, which is similar in many aspects to H. 5366, and the passage of H. 5366 illustrate a growing consensus in state leadership regarding youth cell phone and social media use.  

If the Legislature and the Governor agree on an age verification scheme like the one in H. 5366 or Florida’s law, the state is wading into “untested constitutional ground,” per the ACLU. States that have implemented these age verification schemes have relied on a recent Supreme Court decision, Free Speech Coalition v. Paxton, which permitted a Texas age verification scheme implemented to prohibit minors from accessing obscene content on the internet. Extending such a scheme to all social media platforms—even those that do not display obscene content—creates a distinct constitutional question that the court did not address in Paxton because obscene content is afforded less protection under the constitution than all other speech.  

Overall, this measure pairs a policy met with limited opposition—banning cell phones in schools—with a policy facing sustained opposition raising serious constitutional concerns—the age verification scheme. Regardless of opposition, both policies regulate the actions of students in and out of the classroom, and parents and students alike should monitor how the Commonwealth chooses to regulate youth cell phone and social media use in the near future. 

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* Our blogs are written by the firm’s attorneys, without the use of AI or ghostwriters