Labor Archives – Southern California Law Review

Quis Custodiet Ipsos Custodes: Labor & Privacy in the Age of Kidfluencers and the Internet’s Stage Mothers

March 2026March 2026Elinor J. Haddad*

INTRODUCTION

In 2022, a group of minors sued Tiffany Smith, mother and producer of prolific child influencer Piper Rockelle, and her corporation Piper Rockelle Inc. (“PRI”), alleging nineteen claims in total, nearly all for violations of either state tort law or the California Labor Code.¹ The minors had previously appeared in monetized content on Rockelle’s YouTube channel, which then boasted over 8.5 million followers,² as part of a group of children self-nicknamed “the Squad.”³ According to their complaint, they devoted long hours—in some cases more than twelve hours a day for seven days a week⁴—over three years to producing “hundreds” of “highly lucrative” videos but were never compensated, were denied meal and rest breaks while filming, and did not receive regular on-set education.⁵ Following the suit’s initial filing, YouTube demonetized Rockelle’s channel, and venues where Rockelle had upcoming tour dates canceled her appearances.⁶ In 2023, Smith countersued for $30 million, accusing plaintiffs and their parents of defamation, fraud, and extortion; before plaintiffs responded, Smith dropped her lawsuit.⁷ In March 2024, a Los Angeles Superior Court judge denied Smith’s motion for summary judgment, thus scheduling the case for trial.⁸ By October 2024, the parties had settled for $1.85 million.⁹

The suit illustrates the potential for severe damage inherent in the world of child influencers—a world that is, as of now, largely unregulated. The plaintiffs in the suit, and Rockelle herself, represent a common demographic among child influencers (“kidfluencers”): children between ten and sixteen years of age with public, monetized accounts on large social-media platforms like YouTube, Instagram, and TikTok, and talent and training in skills like dancing and singing as well as video editing and other skills required for content creation. Between 2017 and 2020, the plaintiffs appeared in content on Rockelle’s YouTube channel and on her accounts on other platforms; while Rockelle’s early postings were relatively innocuous (videos with titles like “My trip to the Los Angeles Zoo”¹⁰ and “Getting a pet turtle!!!”¹¹), the channel’s tone quickly took a questionable turn, with videos featuring children performing skits, challenges, and pranks in various stages of undress and in suggestive situations accompanied by clickbait thumbnails and titles¹² such as “24 HOURS HANDCUFFED to my ‘BOYFRIEND’ ” (featuring a then-ten-year-old Rockelle),¹³ “11 YEAR OLD BELLY PIERCED **PRANK** (Can’t Say No 24 Hour Challenge) 🚫👌,”¹⁴ and “Asking STRANGERS To Be My BOYFRIEND Challenge **1 DATE = $100** ❤️💵” (featuring a then-twelve-year-old Rockelle).¹⁵

Using the Piper Rockelle lawsuit (“the PRI lawsuit”) as a case study,¹⁶ this Note will focus on the growing number of kidfluencers and the need for standardized, federal laws ensuring their fair labor conditions and preservation of personal privacy. In particular, this Note will discuss the inadequacy of federal and state regulation of two forms of exploitation that present concerns in the kidfluencer context: (1) labor (exploiting a child’s work without compensation, meaningful consent, or regulation) and (2) privacy (exploiting a child’s image or likeness without compensation and meaningful consent).¹⁷ Part I of this Note presents an overview of the kidfluencer phenomenon and the evolution of stage parents from vaudeville and the early motion picture industry to the Internet and social media. Part II describes kidfluencers’ vulnerability to labor exploitation, discussing how measures protecting child performers remain largely unavailable to kidfluencers and require expansion to cover this new demographic of child workers. Part III details the rampant exploitation of kidfluencers’ privacy and analyzes how the increasing legal spotlight on protecting children as social-media users has yet to acknowledge kidfluencers’ privacy and publicity interests and must do so to adequately protect them. Part IV proposes that, in addition to enacting laws to protect the labor and privacy rights of kidfluencers, Congress should empower social-media platforms as enforcers of kidfluencer laws and impose liability on platforms that host content produced in violation of these recognized kidfluencer rights. Ultimately, this Note presents a holistic set of common-sense regulations, grounded in analogous, existing law, that are designed to close the critical gaps in kidfluencer protections as quickly and effectively as possible. This all-encompassing approach—covering both privacy and labor—to regulating children in monetized content is essential given the pervasiveness of their online presence and the reality of ever-advancing online technology that is here to stay.

I. THE ARRIVAL OF KIDFLUENCERS

The influencer economy is worth over $250 billion worldwide¹⁸ and is expected to swell to $480 billion before the year 2030.¹⁹ U.S. brands spend more than $5 billion on influencers each year.²⁰ Massive content-sharing platforms like YouTube, Instagram, and TikTok host millions of influencers who then share content to millions more subscribers.²¹ On YouTube, influencers creating and sharing videos on their “channels” earn revenue based on the number of views their videos generate. When a YouTube channel is monetized, YouTube collects forty-five percent of advertising revenue from the creator’s videos, and the creator receives the remainder.²² With this formula, top creators earn tens of millions of dollars each year—and kidfluencers with at least one million followers can earn $10,000 or more for each sponsored post they share.²³ Before the onset of the PRI lawsuit, PRI made between $4.2 million and $7.5 million annually from social-media advertising alone, and the PRI plaintiffs averaged up to $28,000 per month in YouTube revenue.²⁴

And kidfluencers are a fast-growing demographic in monetized social-media content.²⁵ Social-media accounts listed in children’s names but managed by parents (typically with a moniker like “Managed by Mom” in the account biography) feature young children almost exclusively, with little to no regulations governing the children’s compensation, working conditions, or content output. Thus, children can work extensive hours, receive little to no formal schooling, and have their intimate details shared on the Internet at-large with essentially no recourse and no safeguarding of their earnings from parents or other adults controlling their accounts. Many kidfluencer accounts boast massive followings, with subscribers in the hundreds of thousands or even millions, and the financial payout is huge. Roughly a century ago, states began regulating labor conditions for child performers, many of whom were pushed into the entertainment industry by their parents and subsequently experienced extensive exploitation.²⁶ Now, social media has given stage parents a new arena—one with novel and potentially catastrophic dangers if left unchecked.

A. A Brief History of Stage Mothers

The concept of “stage parents” and “stage mothers” enjoys a long and controversial history in American culture.²⁷ Early discussion of overbearing and even abusive parents pushing their children into careers on stage and in film arose from personal anecdotes of early film stars. Legendary movie star Judy Garland often recounted growing up on a vaudeville stage in the 1920s and 1930s, and the intensity with which her mother, Ethel Gumm, pushed her to perform; in a 1967 interview, Garland, recalling her early days of performing onstage, stated, “[My mother] would sort of stand in the wings . . . and if I didn’t feel good, if I was sick to my tummy, she’d say, ‘You get out and sing, or I’ll wrap you around the bedpost and break you off short!’ So, I’d go out and sing.”²⁸ Garland, cemented in American culture by her performance as Dorothy in 1939’s The Wizard of Oz, later characterized her mother as “the real Wicked Witch of the West” and described how Ethel began giving her pills to increase energy or to promote sleep before Garland’s tenth birthday.²⁹

Nearly a century and the passage of much legislation for child performers later, stage parents like Ethel Gumm remain, motivated by many of the same interests—money, fame, power, attention—as their twentieth-century counterparts. These interests can easily collide with children’s needs, and the development of laws protecting child actors demonstrates a commitment by the traditional entertainment industry to limiting the effects of such conflict. Today, child actors in multiple states, including California and New York, and members of entertainer unions like SAG-AFTRA have protections that Judy Garland’s generation did not, such as guaranteed access to wages, adequate education, and limitations over working hours.³⁰ These regulations acknowledge both the potential conflict of interest between stage parents and child performers as well as the reality of children as a key and enduring presence within the entertainment industry. But while child actors today are more protected from parents who squander their earnings or force them to work oppressively long hours, children are still at the mercy of their parents as to whether they ultimately pursue an entertainment career in the first place and, if they do, the relentlessness of that pursuit.

In 2022, former child star Jennette McCurdy released her memoir I’m Glad My Mom Died. Chronicling her ascent from poverty to fame on the highly successful Nickelodeon show iCarly, McCurdy detailed her late mother’s longstanding obsession with McCurdy’s success as a child actor, regardless of McCurdy’s own disinterest in such a career. Recalling the initial signing meeting with her first agent, McCurdy wrote,

“It’s important that Jennette wants to act, in order for her to do well,” [the agent] says.

“Oh, she wants this more than anything,” Mom says as she signs on the next page’s dotted line.

Mom wants this more than anything, not me. [Auditioning] was stressful and not fun, and if given the choice, I would choose to never do anything like it again. On the other hand, I do want what Mom wants, so she’s kind of right.³¹

McCurdy emphasized her lack of agency and meaningful choice in embarking on her career as an actor, framing her mother’s eventual death from cancer as the catalyst that allowed McCurdy to leave behind the career she never wanted—though she could not as easily escape her fame.³²

When I was six years old, she pushed me into a career I didn’t want. I’m grateful for the financial stability that career has provided me, but not much else. I was not equipped to handle the entertainment industry and all of its competitiveness, rejection, stakes, harsh realities, fame. I needed that time, those years, to develop as a child. To form my identity. To grow. I can never get those years back.³³

B. Reality Television Bridges the Gap from Film and Television to the Internet

In 2011, the Lifetime reality series Dance Moms premiered, unwittingly marking the beginning of a new era and a new medium for twenty-first-century stage parents. Following a group of young competitive dancers and their intense and argumentative mothers, Dance Moms became an overnight sensation and launched the show’s young dancers into stardom. In the show’s early seasons, the dancers’ mothers spoke of their hopes for their children to achieve careers on a Broadway stage and in film.³⁴ In 2011, Instagram was in its infancy and the advent of TikTok was years away; a handful of hit reality shows featuring children, like Jon and Kate Plus 8 and the ill-fated 19 Kids and Counting,³⁵ existed but the children on those shows were not positioned adjacent to entertainment careers and also had not built independent followings or fanbases—the concept of kidfluencers was entirely new. Dance Moms changed the game.³⁶

Today, the original Dance Moms dancers are in their early to mid-twenties and their primary careers are as social-media influencers.³⁷ Instead of becoming “stars” in a traditional sense on stage and in film, the Dance Moms girls achieved stardom as themselves, beloved by young fans of their show who flocked to follow them on social media as Instagram and other platforms simultaneously took off.³⁸ While the first Dance Moms dancers did not begin their time on the show imagining kidfluencer fame, cast members during the show’s later seasons arguably did. In 2016, a group of younger dancers joined the now-wildly successful Dance Moms cast; entering the show in the post-Instagram and Musical.ly (TikTok’s forerunner application) world, these new dancers had social-media pages ready when the show’s global audience began following them in droves. Now teenagers, many members of Dance Moms’ second generation work as kidfluencers today³⁹—and the world of kidfluencers and reality child stars is a small one. Dance Moms’ second generation includes seventeen-year-old Lilliana Ketchman and eighteen-year-old Elliana Walmsley. Ketchman was named by the PRI plaintiffs as a perceived competitor to Rockelle, “anger[ing]” Smith; the plaintiffs believed Smith subsequently used “dirty tactics” to cause a significant decline in Ketchman’s followers, viewership, and revenue in January 2021.⁴⁰ Meanwhile, Walmsley is a former member of Rockelle’s Squad, though she was not a party to the PRI lawsuit.⁴¹

Image 1. Former Dance Moms Cast Member and Current Influencer Kendall Vertes’s Instagram⁴²

Image 2. Former Dance Moms Cast Member and Current Influencer Chloé Lukasiak’s Instagram⁴³

Barely a decade after Dance Moms’ premiere and Instagram’s launch, kidfluencing is now eclipsing the once-well-trodden paths to child stardom found on television and in film. Piper Rockelle exemplifies this phenomenon:

Paparazzi don’t wait outside Piper’s fuchsia-painted mansion in the San Fernando Valley, but among a young, YouTube-fixated demographic, the ebullient brunette is idolized. As a rising star on the most-watched video-content platform of her generation, Piper bypassed the traditional paths of Nickelodeon and Disney to become a millionaire through the monetization of her social media content.

Propelled by the force of millions of likes and heart emojis, Piper was making between $4.2 million and $7.5 million a year before the Squad’s lawsuit. Her YouTube videos had amassed over 1.87 billion views, and companies such as NBCUniversal, Disney and Amazon were paying her to promote their products on Instagram and TikTok. Super-VIP tickets on her tour—a live variety show that trades on the Squad’s online personas—went for $599.99. She was also selling merchandise on her website, offering personalized greetings via Cameo and making music. She has released seven singles.⁴⁴

The PRI “empire[],” much like many YouTube money machines, “was built at home.”⁴⁵ Smith’s live-in boyfriend, Hunter Hill, also a defendant in the PRI lawsuit, filmed and edited the Squad’s videos in the Smith home, and Smith planned video content and coordinated filming schedules for Squad members.⁴⁶ Initially, Rockelle and other members of the Squad sought success as actors on stage and in film; after her social-media channels took off, however, Rockelle narrowed her focus solely to kidfluencing, while Smith “strongly discouraged” other Squad members from continuing to pursue work beyond their growing YouTube empire.⁴⁷

And though stage parents like Smith are pursuing fame for their children in a new medium, the same conflicts of interest between parents and children that persist in film and television recur in the Internet-child-stardom era. In the early 2000s, the challenges of living in poverty colored Jennette McCurdy’s high-stress journey into the television industry; just a few years later, PRI would allegedly take advantage of children also coming from limited means in order to profit from their involvement in the Squad. Said one PRI plaintiff, “[s]ingle mothers using YouTube to support the family—there’s a lot of those in the [Squad’s families].”⁴⁸

While the PRI lawsuit is seemingly unique (as of now) in terms of its size and the breadth of the allegations at-issue, Rockelle and the Squad are in good company as part of a vast, bankable movement of kidfluencer content creators. Kidfluencer accounts are undeniably popular: a 2019 study revealed that videos featuring a child younger than thirteen-years-old receive three times the views garnered by videos without children.⁴⁹ And critics of the kidfluencer phenomenon say that platforms like YouTube, as well as brands that partner with kidfluencers for paid product placements, are deliberately skirting child labor laws because of kidfluencer accounts’ popularity and payoff; in their view, the legal gray area surrounding kidfluencers enables platforms and brands to make “billions” from kidfluencer content while avoiding the costs and coordination that film and television productions are legally required to undertake to work with child performers.⁵⁰ YouTube currently makes it fairly easy, with strategic use of algorithmic tools like hash-tagging, to achieve monetized status, requiring that channels reach just 1,000 subscribers and 4,000 viewing hours within twelve months to become monetized; as of last year, YouTube hosted roughly two million monetized accounts.⁵¹

Between YouTube, Instagram, and TikTok, opportunities for children to build a massive online presence—and for adults to make serious money off their backs—are exploding. As the last century of developing adequate legal protections for child actors demonstrates, this level of financial promise coupled with children as the key moneymakers is a recipe for exploitative disaster. Now that the recipe has found a new home on the Internet, the potential for lifelong damage to the children behind the money machines has reached devastating levels. The baby steps that some lawmakers are beginning to take toward protecting, primarily, kidfluencers’ compensation are, to be sure, essential regulatory efforts. But the reality of the kidfluencer world demands a much more all-encompassing approach—one that treats kidfluencers as the professionals they are and treats the Internet as the uniquely permanent and wide-ranging medium it is. Making parents the unchecked shot-callers over their children’s labor conditions and privacy is an untenable arrangement because of the potential conflict of interest inherent in parents choosing between substantial monetary gain and their children’s best interests. Kidfluencers and the Internet (much like child film stars and the motion picture industry as seen a century ago) are not going anywhere. So, lawmakers must get serious about how to regulate them.

II. REGULATING THE LABOR OF KIDFLUENCERS

While federal law does provide some protections for child labor, it expressly exempts child performers from those protections. Thus, to the extent that child entertainers receive protection from labor exploitation, those protections come either from state law or from unions for media professionals such as SAG-AFTRA. However, summarizing what relevant federal law is present in this area helps contextualize the gaps in child entertainer regulations that state laws and unions have had to attempt to fill. And while neither state laws (for the most part) nor unions protect kidfluencers’ labor rights, they do protect child entertainers and thus provide helpful and relevant models for what effective legal protections for kidfluencers’ labor should entail.

Only a handful of states have laws governing child entertainers, and the most stringent laws exist in California and New York; both states limit child entertainers’ working hours, regulate their education, mandate their on-set supervision and advocacy, and protect their wages. All of these regulations should be expanded to cover kidfluencers; further, because kidfluencers primarily work at home and thus are not restricted by a need to live within range of entertainment hubs like Los Angeles and New York City, these regulations should apply to kidfluencers in every state through federal legislation. Recent legislation in California, Illinois, Utah, and Minnesota protecting primarily kidfluencers’ wages, while helpful, is but one small piece of the comprehensive regulatory scheme needed to adequately protect kidfluencers’ labor.

A. Existing Labor Regulations for Child Entertainers

1. Federal Measures for Child Workers: The Fair Labor Standards Act

In 1938, the Fair Labor Standards Act (“FLSA”) marked a new era for regulation of child workers. Setting the minimum age of employment for most non-agricultural work at sixteen,⁵² the act came on the heels of the United States Supreme Court striking down laws aimed at regulating commercial goods produced by child workers in Hammer v. Dagenhart⁵³ and the Child Labor Tax Case.⁵⁴ These decisions were but one component of a long struggle by labor reformers to protect child workers—by the twentieth century, reformers heavily emphasized how child labor led to extensive health problems and the deprivation of adequate education.⁵⁵ In developing their platform regarding child labor, advocates also had to reckon with the difficult but inescapable reality that many child workers came from immense poverty. Some reformers lobbed heavy criticism at parents who they claimed were “too lazy to work” and had “become accustomed to subsist[ing] by their children’s labor.”⁵⁶

The FLSA still has multiple exemptions, some critical to child entertainers and kidfluencers alike: the FLSA exempts from regulation “a parent employing his own child”⁵⁷ and does not apply to “any child employed as an actor or performer in motion pictures or theatrical productions, or in radio or television productions.”⁵⁸ The latter exemption is known as the “Shirley Temple Act” because without it, the then-wildly popular child star would have disappeared from movie screens.⁵⁹ Further, the lawmakers behind the FLSA did not consider entertainment work especially hazardous or oppressive, unlike the dangerous factory and agricultural labor the FLSA was intended to address, and thus excluded minors in entertainment from coverage.⁶⁰ Due to this exclusion of child performers from federal regulation, labor rights for child performers fall under state law, and states have adopted a variety of protections (including, in seventeen states, no protections at all) for this demographic.⁶¹

2. SAG-AFTRA, States’ Approaches & the Coogan Law

Some of the most comprehensive protections for child entertainers come from SAG-AFTRA, the primary union for media professionals in the United States. SAG-AFTRA’s collective bargaining agreements with production companies require that companies adhere to the standards delineated in SAG-AFTRA’s contracts as well as applicable state law regarding employment of minors.⁶² Thus, SAG-AFTRA functions as the enforcer of its own standards for employing child performers; its collective bargaining agreements act as a bottleneck against potentially negligent or exploitative employment practices because production companies that are SAG-AFTRA signatories must comply with these standards in order to employ children with SAG-AFTRA membership.⁶³ SAG-AFTRA restricts the working hours of child entertainers working anywhere in the United States, stipulating that minors may not work before 5:00 a.m. or after 10:00 p.m. on days preceding a school day (and may not work after 12:30 a.m. on mornings of non-school days); SAG-AFTRA further limits total working hours per school day to four hours for children ages six to eight, five hours for children ages nine to fifteen, and six hours for children ages sixteen and seventeen.⁶⁴ School days for SAG-AFTRA contract purposes conform to the public school calendar for the district where the minor resides, and SAG-AFTRA requires that school-age minors receive an average of at least three hours of educational instruction on school days.⁶⁵ Minors between six months and two years old may work up to two hours while minors between two and five years old may work up to three hours; only preschool-age minors do not attend on-set school.⁶⁶

SAG-AFTRA’s protections for child actors’ compensation also conform to applicable state law, where present.⁶⁷ Originally passed in California in 1939, the Coogan Law now requires that fifteen percent of all minors’ earnings for entertainment work be placed in a blocked trust account (known as a “Coogan Account”) accessible only by the minor once they reach adulthood.⁶⁸ The law’s namesake, child actor Jackie Coogan, enjoyed a tremendously successful career in the 1920s after being discovered by Charlie Chaplin.⁶⁹ But despite Coogan’s millions of dollars in earnings as a child star, he only ever received a weekly allowance of $6.25 from his mother until, when Coogan turned twenty-one, she ultimately refused to ever turn over more of his earnings to him.⁷⁰ Though intended to prevent exploitation like that Coogan suffered from befalling future young actors, the first iteration of the Coogan Law had critical gaps, including merely permitting, rather than mandating, trust accounts for child performers.⁷¹ It was precisely these gaps that enabled the parents of Shirley Temple herself to devote her earnings entirely to supporting their family of twelve even after the initial passage of the Coogan Law; after her acting career slowed down in her teenage years, the generation-defining star’s “only assets were a few thousand dollars and the deed to her dollhouse in the back yard [sic] of her parents’ Beverly Hills home.”⁷² California closed the gaps in its Coogan Law in January 2000 following advocacy by SAG-AFTRA for unequivocal legal recognition that minors’ earnings from entertainment work are their own.⁷³ Currently, New York, Illinois, Louisiana, and New Mexico all have trust-account mandates for child actors comparable to California’s Coogan Law.⁷⁴

Meanwhile, some states also have laws concerning child performers’ labor conditions in addition to compensation requirements and union protections. California mandates a maximum eight-hour workday for child entertainers in addition to three hours of on-set education for each weekday that children work; California also requires that a state-licensed teacher or welfare worker be present at all times on sets where child performers are working,⁷⁵ and that adults obtain permits before employing children and ensure that a minor’s parent or guardian is within their sight and hearing range at all times that the minor is on set.⁷⁶ In New York, employers of child entertainers working three or more consecutive days must provide a credentialed on-set teacher to ensure that state educational requirements for child entertainers are met.⁷⁷

3. When Does the Home Become a Set?

State laws protecting child entertainers, however well-established, largely do not extend to kidfluencers—even in states like California, which has very strict regulations for child performers⁷⁸ (PRI is located in Los Angeles and the Squad’s videos were filmed there⁷⁹). If we apply California and SAG-AFTRA’s labor regulations for child actors to PRI and the Squad, PRI—sometimes allegedly, other times admittedly—fell far short.⁸⁰ Smith did not obtain permits to work with the minors in the Squad.⁸¹ Some PRI plaintiffs claimed they worked up to twelve hours per day, seven days a week, without rest and meal breaks and without compensation.⁸² The mother of two plaintiffs, sisters, worried that one of her daughters “was falling behind in school because she wasn’t getting enough sleep” due to Smith’s demanding filming schedule.⁸³ Some of the plaintiffs’ parents alleged that Smith “regularly forbade other adults from being on set”;⁸⁴ Smith reportedly only ever “briefly” hired an on-set teacher for Squad members and “was uninterested in the children’s education,” even though none of the minors attended traditional in-person school during their years filming.⁸⁵ After some of the plaintiffs’ parents hired a private tutor to work with the minors in Smith’s guesthouse, Smith “barged” into the guesthouse mid-lesson, “screaming” that the child currently studying needed to “report to set immediately” and that “she didn’t care whether the tutor’s hour wasn’t up.”⁸⁶ The tutor left her position teaching the Squad after the incident.⁸⁷ Plaintiffs also reported that Rockelle herself had significant educational gaps, claiming Rockelle, who has only ever been homeschooled,⁸⁸ had trouble reading and “never” did schoolwork.⁸⁹

Commenting on the allegations in the PRI lawsuit regarding failure to provide compensation as well as the maintenance of an oppressive work environment, plaintiffs’ attorney Matthew Sarelson remarked, “Imagine if these kids had been on a movie set for Lionsgate . . . . People would go to jail if this had happened at a studio.”⁹⁰ But kidfluencers occupy a legal gray area existing somewhere between professional child performers and the kids-next-door getting together to make a funny video.⁹¹ And the PRI plaintiffs assert that that legal gray area has given rise to a “Wild West atmosphere of content creation” where adults can push children into extensive, high-profile content creation with little to no oversight.⁹²

Throughout the PRI lawsuit, Smith emphasized that she “did not view her home as a workplace” nor herself as the plaintiffs’ employer; she described the Squad’s activities as “ ‘kids get[ting] together voluntarily to collaborate on making videos,’ ” a far cry, in her view, from a professional studio environment that would necessitate her compliance with state child labor laws.⁹³ Smith’s lawyer commented, “There is tremendous uncertainty about what labor laws apply in the context of filming a YouTube video at home, with an iPhone . . . . At what point is that a professional production?”⁹⁴ Meanwhile, Sarelson argued that “PRI should be treated no differently than a traditional production company” and expressed “hopes [that] the lawsuit sparks change in the social media space.”⁹⁵ Some of PRI’s activities—including using a professional camera to film content and posting audition notices for young actors to film with Rockelle—could indicate that the corporation was effectively operating as a professional production company.⁹⁶ But currently, no federal legislation exists delineating the line between making home videos and shooting professional social-media content.

B. New Efforts: Expanding Child Labor Regulations to Cover Kidfluencers

A handful of states are beginning to enact labor protections for kidfluencers, underscoring the desire and need for a comprehensive, federal approach to kidfluencer regulation.⁹⁷ In July 2025, Minnesota enacted some of the most significant kidfluencer regulations so far: not only does the state now mandate protected trust accounts to safeguard kidfluencers’ earnings, but it also prohibits children less than fourteen years old from appearing in monetized content at all.⁹⁸ Instead of designing its law solely as a means of “legitimizing” kidfluencers as akin to child entertainers, University of Minnesota Law School Dean William McGeveran said Minnesota “ ‘set [its law] up as almost a child labor law. . . . It’s about kids needing to be able to be paid for work that they do . . . . And if they’re 13 and under, kids can’t work in the ice cream shop and they can’t work in their parents’ content creation either.’ ”⁹⁹ Minnesota’s statute does not enshrine any further labor regulations for kidfluencers over fourteen beyond protecting their earnings.

For the other six states that now protect kidfluencers’ labor, their measures are limited to regulating kidfluencers’ compensation. In July 2024, Illinois became the first U.S. state to enact laws expressly protecting kidfluencers’ earnings.¹⁰⁰ Content creators in Illinois must now set aside a portion of earnings in a protected trust account for all minors age sixteen and under who appear in at least thirty percent of their monetized content.¹⁰¹ Illinois Senator Dave Koehler, who introduced the law, took action after Shreya Nallamothu, a fifteen-year-old high school student in his district, alerted him to the issue of young children being featured extensively online with no labor protections for them in place.¹⁰² “This new digital age has given us tremendous opportunities to connect with one another, but it’s also presented legal issues that have never existed before,” said Koehler.¹⁰³ “We need to work with our children to see the problems they face and tackle them head-on before any further harm is done.”¹⁰⁴

The Illinois law protects earnings for minors under the age of sixteen while stipulating that minors under sixteen who produce their own videos are not considered “vlogger[s]” subject to the compensation and record-keeping requirements established by the law.¹⁰⁵ The law explicitly includes “famil[ies]” in its definition of “vlogger[s],” thus requiring parents who produce content featuring their own children (as well as any other children) to set aside the minors’ earnings if their inclusion reaches the specified threshold. The law also amends Illinois’ Child Labor Law by allowing teenagers who are at least eighteen years old to take legal action against their parents for failing to compensate them in accordance with the new requirements.¹⁰⁶ In response to the law, University of Alabama professor of digital media Jessica Maddox called the legislation “long overdue” and pushed for other states to take similar steps as well as expand protections to allow eighteen-year-olds to petition for the removal of social-media content that features them.¹⁰⁷ Emphasizing the need for regulations that adequately measure up to the reality of the kidfluencer phenomenon, Maddox commented:

[Kidfluencing and vlogging] are actual jobs, possible ways of earning income, that need protection . . . . Since there aren’t unions, there isn’t systemic protection in terms of laws, that is why Illinois law is super important for setting the precedent that this type of labor needs to be protected, especially for minors.¹⁰⁸

Meanwhile, on September 26, 2024, California Governor Gavin Newsom signed legislation expressly expanding the state’s Coogan Law to cover kidfluencers sharing content on YouTube and similar platforms.¹⁰⁹ The bill in question, AB 1880, defines “content creator” as “an individual who creates, posts, shares, or otherwise interacts with digital content on an online platform,” including “vloggers, podcasters, social media influencers, and streamers”; “online platform” is defined as “any public-facing website, web application, or digital application.”¹¹⁰ Regarding Governor Newsom’s support for the bill, bill author Assemblymember Juan Alanis remarked:

I thank Governor Newsom for signing AB 1880 and for his commitment to addressing the unique challenges minors face as online content creators in the rapidly growing digital entertainment industry. Child content creators deserve the same protections under the Coogan Law as their counterparts in traditional entertainment. With this bill, California takes a significant step in protecting the financial rights and well-being of child online influencers by extending critical protections against exploitation and ensuring they receive a fair share of earnings from their content.¹¹¹

Former child actor and successful musician Demi Lovato championed the bill as a critical step toward “grant[ing] agency” toward kidfluencers upon reaching adulthood.¹¹²

Signed alongside AB 1880 was SB 764,¹¹³ the Child Content Creator Rights Act (“CCCRA”), authored by Senator Steve Padilla.¹¹⁴ The CCCRA stipulates that video bloggers (“vloggers”) engage a minor “in the work of vlogging” when at least thirty percent of the vlogger’s monetized visual content includes “the likeness, name, or photograph of the minor.”¹¹⁵ Vloggers engaging minors in vlogging work under the definition of the CCCRA are required to keep detailed records of the minor’s age during the vlogging period and the extent of their appearance in and compensation for monetized content.¹¹⁶ Contracts for vlogging work between a minor and their parent must be approved by a court to avoid application of the bill’s terms; “[i]n determining whether to approve such a contract, the court shall consider whether the terms of the contract are at least as beneficial to the minor as the compensation the minor would otherwise receive under [the CCCRA].”¹¹⁷

And as of May 2025, Utah now also mandates protected trust accounts for kidfluencers.¹¹⁸ With similar provisions to those in California and Illinois, Utah’s law also lays out procedures for managing kidfluencers trusts and also requires that content creators “inform a minor’s parents that the minor is featured” in their content if, as in the PRI lawsuit, the creator is not themselves the minor’s parent.¹¹⁹ In the same vein, Virginia, Arkansas, and Montana all enacted kidfluencer laws in 2025, and each state focused its labor protections for kidfluencers on compensation safeguards, mandating Coogan Account-esque trusts for kidfluencers appearing in a certain percentage of creators’ content.¹²⁰

As lawmakers in California, Minnesota, Illinois, Utah, Arkansas, Montana, and Virginia have recognized, kidfluencing is a job, plain and simple. It demands the same safeguards against labor exploitation that are accepted throughout the United States for children in traditional entertainment jobs, along with additional protections that are necessary to address issues unique to kidfluencing. Thus, while the recent legislation in these states represents important progress, much more robust protections for kidfluencers—regulations modeled after California’s existing laws for child actors—are needed. Because of the geographic flexibility inherent in kidfluencer work, such protection is needed at the federal level to be fully comprehensive; further, kidfluencer regulations must not only mandate safeguards to compensation, but also ensure limits on working hours, guaranteed access to education, on-set supervision and advocacy, and the obtainment of permits to employ minors. As it stands today, even for kidfluencers now protected from financial exploitation in a handful of states, the rest of their working conditions remain largely unregulated—as does their privacy.

III. REGULATING THE PRIVACY OF KIDFLUENCERS

Growing up in the pop culture spotlight compromises a child’s privacy and reputation in ways that can be painful and enduring. As child actor Jennette McCurdy put it, “Growing is wobbly and full of mistakes, especially as a teenager—mistakes that you certainly don’t want to make in the public eye, let alone be known for for the rest of your life. But that’s what happens when you’re a child star.”¹²¹ And for kidfluencers, the extent to which their privacy and reputations are at stake is much greater. For Shirley Temple and Judy Garland, while the laws protecting them were still woefully inadequate, the personal information they shared with the public was limited to their performances as fictional characters, filmed on a soundstage by a camera that never followed them home. But for kidfluencers, the camera lives at home. Nothing is off-limits and every experience, every mistake, every embarrassment is potential content with dollar signs attached to it.

If labor regulations for kidfluencers are largely undeveloped, laws protecting kidfluencers’ privacy seem like less than an afterthought—perhaps even conceptually oxymoronic given that the point of kidfluencer content, in general, is to share children’s personal lives online. Even as lawmakers take steps to protect children as Internet users, kidfluencers are nowhere to be found in their policies. Though states have common law rights to privacy and publicity and a 1998 federal act regulates online platforms’ collection of children’s personal data, these rights can all generally be waived with consent—and for children, the consenting parties are their parents. Meanwhile, online platforms typically limit accounts to users aged thirteen and older, but given the numerous active kidfluencer accounts heavily featuring children under thirteen, platforms do not appear to restrict accounts that overwhelmingly feature children if the accounts are set up and managed by adults. These gaping loopholes in existing rights and policies allow kidfluencer accounts to thrive unchecked,¹²² leading to severe, long-term harm to and exploitation of kidfluencers that society is likely only beginning to reckon with.¹²³

A. Privacy Regulations for Children as Users Online

Existing and Proposed Federal Regulations for Children Online

i. The Children’s Online Privacy Protection Act of 1998

The Children’s Online Privacy Protection Act of 1998 (“COPPA”) is the primary set of federal regulations concerning children’s online privacy, covering consent and notice requirements for online platforms and entities that collect personal data from children.¹²⁴ COPPA’s “primary goal . . . is to place parents in control over what information is collected from their young children online,”¹²⁵ and it focuses on protecting children as users of online platforms as opposed to children appearing in online content. COPPA requires the Federal Trade Commission (“FTC”) to regulate online collection of children’s data and was last amended in 2013 in an effort to keep up with advancing technology.¹²⁶ Kidfluencers are not explicitly covered by COPPA or any other federal law.

As a protective measure for children who are merely consumers of online content, COPPA is reasonably comprehensive (though it needs continuous updates to remain effective). Its critical failure as a protective measure for kidfluencers, however, lies in its parental-consent-based structure—and in the fact that it makes no actual mention of kidfluencers at all. COPPA only applies to children under thirteen and requires that online entities obtain parental consent before collecting children’s personal data from children. COPPA prohibits “unfair and deceptive acts and practices in connection with the collection and use of personal information from and about children on the Internet.”¹²⁷ The act applies to websites or online services “directed to children”; in determining whether a given platform qualifies under this standard, the FTC considers the platform’s “subject matter,” “use of . . . child-oriented activities and incentives,” and “presence of child celebrities” as among relevant factors.¹²⁸ COPPA defines “collection” as “the gathering of any personal information from a child by any means, including . . . [r]equesting, prompting, or encouraging a child to submit personal information online,” “[e]nabling a child to make personal information publicly available,” and “[p]assive tracking of a child online.”¹²⁹ “[P]ersonal information” under COPPA includes identifiers like first and last name, physical address, and a “photograph, video, or audio file where such file contains a child’s image or voice.”¹³⁰ “Child” under COPPA includes only “individual[s] under the age of 13.”¹³¹

Before online entities collect personal data from a child, COPPA requires that the child’s parent receive adequate notice about the information collected and its intended use and that the parent consent to such collection.¹³² Online platforms also must provide parents with a “reasonable means . . . to review the personal information collected . . . and to refuse to permit its further use or maintenance.”¹³³ COPPA specifies that any means employed for parents to review collected information cannot be “unduly burdensome” to the parent and asserts that parents have the right to “at any time . . . refuse to permit . . . further use or future online collection of personal information . . . and to direct the [online platform] to delete the child’s personal information.”¹³⁴ Platforms have the right to terminate a child’s use of its services if the child’s parent revokes consent and requests deletion of collected information.¹³⁵ Platforms also must only retain children’s information for “as long as is reasonably necessary to fulfill the purpose for which the information was collected.”¹³⁶

Lastly, COPPA includes safe harbor provisions, allowing online entities that follow approved sets of self-regulatory guidelines to be deemed compliant with COPPA and eligible for safe harbor treatment shielding them from potential liability.¹³⁷

ii. COPPA 2.0

In May 2023, U.S. Senator Edward Markey, the author of COPPA, alongside Senator Bill Cassidy, introduced a new version of COPPA, “COPPA 2.0.”¹³⁸ After the Senate Commerce, Science, and Transportation Committee unanimously advanced COPPA 2.0 in July 2023, the Senate passed the bill in August 2024.¹³⁹ Senators Markey and Cassidy then reintroduced the bill in March 2025.¹⁴⁰ In early 2024, COPPA 2.0 cosponsor Senator Ted Cruz described the bill’s purpose as ensuring that no child leaves behind a digital footprint:

When Congress first passed the Children’s Online Privacy Protection Act, Americans were using dial-up to search “Ask Jeeves” instead of Google. Now, kids can access the Internet in the palm of their hands, and tech companies routinely surveil and target America’s youth. I’m proud to have worked with Sens. Markey, Cantwell, and Cassidy on bipartisan legislation to empower parents to safeguard their children’s online privacy and hold tech companies responsible for keeping minors safe from data collection. Every child deserves to grow up free of a digital footprint, and this bipartisan legislation is one step closer to achieving that goal.¹⁴¹

Championed as a means of bringing “children and teen’s online privacy standards into the 21st century,”¹⁴² COPPA 2.0 enumerates additional categories of online platforms, including mobile applications,¹⁴³ and forms of personal data, including biological and physiological information.¹⁴⁴ Most significantly, however, COPPA 2.0 creates an entirely new class of protected minors: teenagers between thirteen and sixteen years old.¹⁴⁵ Under COPPA 2.0, teenagers—not their parents—consent to collection of their own personal data and are empowered to request review of collected data as well as revoke consent for data collection.¹⁴⁶ However, COPPA 2.0 does not permit teenagers to withdraw consent for their own data that was collected with their parents’ consent before they turned thirteen.¹⁴⁷ The omission of this right, under either iteration of COPPA, is particularly sobering in the kidfluencer context because it prevents kidfluencers from compelling platforms to remove their data, collected before age thirteen, in the event that their parents cannot or will not do so.

2. Online Platforms’ User Age Restrictions

The largest social-media platforms typically require users to be at least thirteen years old,¹⁴⁸ though caveats to this rule exist. YouTube’s terms of service specify that users “must be at least 13 years old to use [YouTube]; however children of all ages may use [YouTube and YouTube Kids] . . . if enabled by a parent or legal guardian.”¹⁴⁹ TikTok requires users to be at least thirteen years old,¹⁵⁰ and TikTok’s settings default accounts associated with minor users to private mode; TikTok users ages sixteen and seventeen can choose to make their accounts public.¹⁵¹

Instagram also requires that users be at least thirteen;¹⁵² on September 17, 2024, Instagram began defaulting all accounts created by users who indicated they are under eighteen to private mode.¹⁵³ These changes, which Instagram says are being “rolled out on an individual basis,”¹⁵⁴ are part of Instagram’s new “Teen Accounts” initiative promoted as a means of increasing safety for minors using the platform.¹⁵⁵ Under the “Teen Accounts” setup, users ages sixteen and seventeen can change the default privacy setting themselves to make their accounts public; minors under sixteen need their parents’ permission to do so.¹⁵⁶

It is not clear whether Instagram’s recent changes will affect accounts that feature minors but are at least ostensibly managed by an adult (as most kidfluencer accounts typically are); however, Instagram makes no mention of such accounts in its communications about this new measure, while stipulating that the “Teen Accounts” setup applies to “users.” Thus, even as platforms begin rolling out age restrictions, kidfluencer accounts continue to

occupy a gray area outside of the growing spotlight on child social-media users.

B. Relevance and Current Limitations of the Common Law Rights of Privacy and Publicity

In the United States, the common law rights of privacy and publicity are “distinct” from one another and “intended to vindicate different interests,” though the latter initially evolved out of the former.¹⁵⁷ While the right of publicity enshrines the “right to control the commercial value of one’s identity,”¹⁵⁸ the right of privacy “protects one’s right ‘to be let alone.’ ”¹⁵⁹ The common law right of privacy comprises four tort causes of action: intrusion upon seclusion, public disclosure of private facts, false light, and appropriation.¹⁶⁰

The common law right of publicity developed out of both the right of privacy and intellectual property law, and has existed formally in the United States since the 1970s.¹⁶¹ While the United States Supreme Court recognized the existence of the right of publicity in 1977 in Zacchini v. Scripps-Howard Broadcasting Co.,¹⁶² there is no federal right of publicity; rather, the right of publicity exists at the state level and is currently recognized in thirty-five states, including California.¹⁶³ The right of publicity stipulates that individuals have a common law right against appropriation of “the commercial value of [their] identity . . . without consent”;¹⁶⁴ inherent in the right is the recognition that “an individual’s likeness” is that individual’s “own property.”¹⁶⁵ The right of publicity is based on three core justifications: (1) the right to “reap the fruit of [one’s] labors,” connected to concerns about unjust enrichment;¹⁶⁶ (2) the “copyright-incentive theory” that the law must protect the individual’s persona so as to promote creative artistry; and (3) the need to protect “consumer[s] from advertising deception.”¹⁶⁷ Section 3344 of the California Civil Code (“section 3344”) codifies California’s common law right of publicity and prohibits use of another’s image or “likeness” for profit without consent.¹⁶⁸ For minors, however, it is precisely the element of “consent” that is likely to prove most challenging if and when section 3344 is invoked to protect their rights, for the law expressly recognizes consent by a minor’s parent or guardian as equivalent to the minor’s own consent.¹⁶⁹

While the PRI lawsuit is currently unique, it illustrates how disputes over consent are likely to be central to any efforts to protect kidfluencers’ privacy and publicity rights under the common law and corresponding statutes. Three plaintiffs in the PRI lawsuit alleged violations of both section 3344 and California’s common law right of publicity;¹⁷⁰ Smith argued that she could not be liable under section 3344 and the common law precisely because the parents of the three plaintiffs had consented to the use of their children’s likenesses for commercial purposes on Rockelle’s channel.¹⁷¹ The plaintiffs disputed the fact of such consent¹⁷² and, in denying summary judgment in March 2024, the Superior Court of California ruled that these claims created issues of triable fact. Presumably, parents of the other eight plaintiffs had consented to use of their children’s likenesses for profit by Smith and PRI. And given that no plaintiff ever alleged that their parent had no knowledge whatsoever of their appearance in videos on Rockelle’s channel, it follows that the parents of the three children alleging publicity violations simply may not have given meaningful consent.

At least for situations like the ones in which these three PRI plaintiffs found themselves, requiring that online platforms verify meaningful consent and notice by kidfluencers or their parents to use of the child’s likeness in monetized content would counteract harm. But still further, the lack of application of recognized privacy and publicity rights to the kidfluencer context as well as the parental-consent waiver’s potential for conflicts of interest in that context is representative of the current limitations of existing laws. Looking at the plain language and spirit of the recognized rights of privacy and publicity alongside the raw reality of the kidfluencer phenomenon, as typified by the PRI lawsuit, it follows not only that our society and legal system should care about protecting kidfluencers’ privacy and publicity rights, but that we in fact do care about it. However, our society has not yet recognized how our concern for privacy and publicity rights implicates kidfluencers due to their novelty; and it would likely take years of litigation—and kidfluencer exploitation—before the common law could produce a legal framework appropriate for the competing claims of parents and kidfluencers to control over the child’s rights to privacy and publicity.

C. Falling Through the Gaps: Protecting Kidfluencers’ Privacy

1. Kidfluencing’s Unique Threat to Privacy

The Senate’s passage of COPPA 2.0 indicates a strong desire on the part of lawmakers to protect children online. But thus far, kidfluencers are missing entirely from that conversation—and to disastrous results. The types of information COPPA and COPPA 2.0 mention specifically as constituting “personal” data worth protecting—full names, online contact information, photographs, video and audio files containing a child’s image or voice, geolocation information, and more—are available in droves on kidfluencer accounts. And even as social-media platforms place age restrictions on users, kidfluencer accounts need only include a few words claiming to be managed by a parent in their description to post massive amounts of kidfluencer content to vast online audiences without constraint.

And kidfluencers’ audiences grow more dangerous as their accounts gain traction: in early 2024, the New York Times published an in-depth investigation into kidfluencers’ follower demographics, and the results are sobering. The proportion of kidfluencer account followers who are adult males grows “dramatically” as accounts grow in popularity.¹⁷³ While men made up approximately 35 percent of kidfluencer audiences overall, “[m]any [accounts] with more than 100,000 followers had a male audience of over 75 percent,” while some had over 90 percent.¹⁷⁴ The Times discovered men previously charged with or convicted of sex crimes among kidfluencer followers and found that some of these men participated in chat rooms with thousands of members, “treat[ing] children’s Instagram pages . . . as menus to satisfy their fantasies.”¹⁷⁵

While some parents are ignorant of the dangers posed by their children’s audiences,¹⁷⁶ others have grown “numb” trying to beat back the unending tide of suspicious followers.¹⁷⁷

“You are so sexy,” read one comment on an image of a 5-year-old girl in a ruffled bikini. “Those two little things look great thru ur top,” said another on a video of a girl dancing in a white cropped shirt, who months later posted pictures of her 11th birthday party.

For many mom-run accounts, comments from men—admiring, suggestive or explicit—are a recurring scourge to be eradicated, or an inescapable fact of life to be ignored. For others, they are a source to be tapped.

“The first thing I do when I wake up and the last thing I do when I go to bed is block accounts,” said Lynn, the mother of a 6-year-old girl in Florida who has about 3,000 followers from the dance world.

Another mother, Gail from Texas, described being desensitized to the men’s messages. “I don’t have as much of an emotional response anymore,” she said. “It’s weird to be so numb to that, but the quantity is just astounding.”¹⁷⁸

Still other parents are taking knowing advantage of this population: men in the chat rooms that the Times uncovered “frequently praise[d] the advent of Instagram as a golden age for child exploitation” and “trade[d] information about parents considered receptive to producing and selling ‘private sets’ of images.”¹⁷⁹ And among the allegations in the PRI lawsuit was a claim by one plaintiff that she accompanied Smith in mailing “several of Piper’s soiled training bras and panties to an unknown individual,” whereupon Smith told the plaintiff that “old men like to smell this stuff.”¹⁸⁰ Plaintiffs also alleged that Smith often “boast[ed] . . . about being the ‘Madam of YouTube’ ” and a “Pimp of YouTube,” and about making “kiddie porn.”¹⁸¹

Rockelle’s content and the PRI plaintiffs’ allegations paint a stark picture of the rampant sharing of invasive kidfluencer content carrying on unchecked throughout social media. For the members of the Squad, their experience working with PRI shares themes with Jennette McCurdy’s recollection of losing her childhood, autonomy, and privacy to child stardom. The Squad made countless videos centered around the group’s internal “crushes” and these videos performed much more strongly than the more innocent videos from Rockelle’s early days.¹⁸² Smith and Hill documented Rockelle’s first kiss on camera at age eleven¹⁸³ and filmed challenges among the Squad in which the minors competed to see who could kiss without stopping for the longest period of time.¹⁸⁴ The mother of two PRI plaintiffs, who is also Rockelle’s aunt, claimed that Smith sent Rockelle “a daily iPhone checklist cataloging the attention she needed to pay to her boyfriend, including sending him heart emojis [and] giving regular kisses, hugs and loving touches.”¹⁸⁵

In addition to the suggestive video content on Rockelle’s channel, the thumbnail images for the videos themselves are clearly set up to provide shock value and drive an increase in viewership. The mother of one PRI plaintiff alleged that Smith “often urged [plaintiffs] to pose more provocatively for thumbnail photo shoots,” ¹⁸⁶ and the lawsuit claimed that Smith, declaring that “sex sells,” “would frequently tell [the Squad members] to make ‘sexy kissing faces’ for thumbnails, to ‘push their butts out,’ to ‘suck their stomachs in,’ ‘wear something sluttier’ and would otherwise position [the p]laintiffs’ bodies in explicitly and sexually suggestive positions.”¹⁸⁷ As a result, minors are frequently depicted in provocative, revealing, or otherwise exploitative positions and situations in Rockelle’s thumbnails.

Image 3. Video on Piper Rockelle’s YouTube Channel, Featuring Eleven-Year-Olds¹⁸⁸

Image 4. Video on Piper Rockelle’s YouTube Channel, Featuring Eleven-Year-Olds¹⁸⁹

Image 5. Video on Piper Rockelle’s YouTube Channel, Featuring Eleven-Year-Olds¹⁹⁰

Image 6. Video on Piper Rockelle’s YouTube Channel, Featuring Eleven-Year-Olds¹⁹¹

The following YouTube video thumbnail images are merely described herein to protect the privacy of the minors featured in them:

Six teenagers (four female, two male), aged thirteen to seventeen, photoshopped to appear crowded together inside a bubble bath. The two male teenagers are shirtless, while the female teenagers appear to be wearing tank tops. The female teenager in the center has her hair arranged covering the straps of her tank top. The video is entitled “LAST TO LEAVE THE BUBBLE BATH!!” and has 2.3 million views.¹⁹²

Six teenagers (three female, three male), aged twelve to fifteen, arranged in co-educational pairs, each in one of three horizontal panels. Each female is touching her male counterpart. The male in the center panel is shirtless and his female counterpart is touching his bare torso. The video is entitled “LAST TO STOP MASSAGING THEIR BOYFRIEND WINS **Couples Challenge** 💆‍♀️💕” and has 1.9 million views.¹⁹³

One female aged eleven pictured in a cropped shirt pointing at her navel. A fake piercing is attached to her navel and a yellow circle is superimposed around her stomach while a zoomed-in image of her navel with the piercing appears in the right-hand side of the thumbnail. In the center of the thumbnail, the words “11 YEARS OLD!!” appear in large block lettering. The video is entitled “11 YEAR OLD BELLY PIERCED **PRANK** (Can’t Say No 24 Hour Challenge) 🚫👌” and has 4.6 million views.¹⁹⁴

Two females, aged eleven and twelve, wearing fake “baby bumps” designed to look like a pregnant woman’s belly with their shirts raised to expose the bumps. The video’s description includes the note, “We are only 11 and 12 so [this is] a pretty crazy challenge for us.” The video is entitled “24 Hours Being PREGNANT Challenge in PUBLIC with TWINS **FUNNY REACTIONS** 🍼🎀” and has 14 million views.¹⁹⁵

According to the Los Angeles Times’ investigation of the PRI lawsuit, PRI’s videos chronicling the Squad’s “crushes” performed the best with Rockelle’s online audience.¹⁹⁶ This data combined with the New York Times’ findings regarding dangerous followers of kidfluencers reflect the significant market that exists for kidfluencer content that is sensitive at best and criminal at worst. If, in the words of COPPA 2.0 cosponsor Senator Ted Cruz, “[e]very child deserves to grow up free of a digital footprint,”¹⁹⁷ the law is currently failing kidfluencers to a staggering degree.

Further, even content that perhaps falls short of the hallmark suggestiveness of Rockelle’s brand victimizes kidfluencers—according to some kidfluencers themselves. In July 2023, Ruby Franke, former figurehead of the now-defunct YouTube channel “8 Passengers,” made headlines when her two youngest children, then ages nine and twelve, were found emaciated and wounded.¹⁹⁸ The children had been imprisoned and suffered months of abuse by both Franke and her business partner Jodi Hildebrandt.¹⁹⁹ Franke had stopped posting videos of her children over a year before, changing the name of her channel to “Moms of Truth” and posting solemn videos alongside Hildebrandt discussing parenting strategies and religion. But in the 8 Passengers heyday, Franke posted videos of her family of eight almost daily, chronicling her six children’s lives as they grew up in front of an audience of up to two million subscribers.²⁰⁰

By 2022, 8 Passengers viewers had started to grow concerned about Franke’s behavior—while the harrowing nature of Franke’s eventual abuse would have been impossible for viewers to predict, many subscribers began to notice that Franke showed an indifference, at best, to her children’s privacy.²⁰¹ Franke spoke at length in her YouTube videos about sensitive matters in her children’s lives; over the course of several videos, she described in-depth her and her husband Kevin’s decision to send their oldest son, then fourteen, to a behavioral modification camp in the Arizona wilderness. At one point, Franke played a voicemail for viewers that her son had left her while at the camp; her son cried throughout the voicemail as he described his experience.²⁰² Another video featured the parents taking their preteen daughter to buy her first bra. After Kevin asked his preteen, “How come you’re all embarrassed?” his oldest daughter Shari spoke up off camera: “Because you’re filming her and you’re her dad?”²⁰³

2. Adapting COPPA 2.0 and the Necessity of a Right to Removal

In October 2024, Shari, now twenty-one, addressed Utah’s Business and Labor Interim Committee; Utah Representative Doug Owens, who sponsored Utah’s subsequent bill regulating kidfluencers, introduced her testimony.²⁰⁴ Shari told lawmakers that she appeared before them “as a victim of family vlogging” in hopes of “shed[ding] light on the ethical and monetary issues that come from being a child influencer.”²⁰⁵ Her words highlighted how adequate compensation is but one small component of a comprehensive regulatory scheme to protect kidfluencers; her experiences as a kidfluencer also evoke many of the same themes as Jennette McCurdy’s retelling of her time as a child actor—in particular, the sense that the compensation she received, while helpful, was simply not worth the loss of her childhood.

[Being a kidfluencer] is more than just filming your family life and putting it online. It is a full-time job with employees, business credit cards, managers, and marketing strategies. The difference between family vlogging and a normal business, however, is that the employees are all children. Children, from before they are born to the day they turn eighteen, have become the stars of family businesses on YouTube, Instagram, and most other social media platforms.

. . . .

At first, family vlogging is an alluring business that can bring high revenue. For my family, it became the primary source of income . . . . Many child influencers are paid for their work as I was, and this money has helped me in my adult life. However, this payment was usually a bribe. For example, we’d be rewarded $100 or a shopping trip if we filmed a particularly embarrassing moment or an exciting event in our lives. . . . Any payment that happens is under the table, with no paper trail. And how do we determine how much a child should make from appearing in family content? What price is worth giving up your childhood?

. . . Some of our most popular videos were when my eyebrow was accidentally waxed off, and the whole world saw a crying teenager when I just wanted to mourn in private. Or the time I was violently ill and got the leading role in the video for that day. My friends became scarce because dates were filmed and none of my friends wanted to be on camera. The camera never stops and there is no such thing as a [vacation] from filming.

. . . .

[A]s children, we do not understand the consequences of filming our lives and [having it] post[ed] for the world to see. We cannot give consent to our parents to post our lives. . . . I did not realize the impact that filming as a child would have on me now. . . .

. . . .

If I could go back and do it all again, I’d rather have an empty bank account now and not have my childhood plastered all over the Internet. No amount of money I received has made what I’ve experienced worth it. . . . I promise you that my experiences are not unique and are happening to child influencers all over Utah and the country. Let’s tackle this issue before it becomes a bigger crisis than it already is.²⁰⁶

As Shari’s words illustrate, kidfluencing is currently too unchecked and too profitable—for parents—to be safe; thus, common-sense regulations aimed at deterring parents from overworking and oversharing their children for a financial payout are critically necessary. Just as labor protections for kidfluencers would be most effective if enacted at the federal level, protective measures for kidfluencers’ privacy need federal support. COPPA presents a key opportunity to begin developing that support by empowering kidfluencers to wield greater control over their digital footprints long term. While COPPA 2.0 takes an important step forward by expanding online privacy protections for teenagers, a truly comprehensive and effective COPPA amendment would also cover kidfluencers.

Protections for kidfluencers under a new version of COPPA would make explicit the right of teenaged kidfluencers to consent (or not) to sharing their personal information in monetized content and their right to revoke that consent at any time; this system would empower teenaged kidfluencers by allying them with the social-media platforms hosting their content—regardless of a parent’s role in producing kidfluencer content, platforms would require the kidfluencer’s consent before new content could be shared. For kidfluencers under thirteen, the consent that their parents give to sharing their children’s information and to commercial use of their likeness would become provisional only and revocable by the child upon reaching age thirteen. This change would allow kidfluencers to retroactively revoke consent to personal data their parents had agreed to share and compel platforms to remove it.²⁰⁷ And in situations where groups of kidfluencers create content together, as in the case of Piper Rockelle’s Squad, a kidfluencer-focused COPPA section would provide legal scaffolding to discourage casual content-sharing to large online audiences without informed consent by every parent or teenager involved. These amendments would be a first step in giving kidfluencers the privacy protections that they currently lack.

Four of the states that now regulate kidfluencers’ compensation have also taken steps in this direction: recent laws in Montana, Arkansas, Utah, and Minnesota include provisions aimed at empowering kidfluencers to request removal of content featuring them. In particular, Minnesota’s flat ban on children thirteen and under working as kidfluencers is well worth lawmakers’ consideration both in other states and at the federal level; such a ban would have automatically made much of the Squad’s early content unlawful due to the children’s ages, while also avoiding the challenges of enforcing more nuanced regulations. Yet gaps persist—Minnesota’s law provides that “[c]ontent containing the likeness of a child must be deleted and removed from any online platform by the individual who posted the content, the account owner, or another person who has control over the account when the request is made,” either by a kidfluencer at least thirteen years old or by a former kidfluencer who is now an adult.²⁰⁸ However, the law does not provide an explicit enforcement mechanism or a means for relief for kidfluencers whose requests for removal go unheeded; it also seemingly exempts social-media platforms from responsibility entirely as it has no “effect on a party that is neither the content creator nor the minor who engaged in . . . content creation.”²⁰⁹

Meanwhile, Utah’s law does involve social-media platforms that host kidfluencer content explicitly in its removal provisions, requiring that platforms “provide a readily apparent process” for former kidfluencers who are now at least eighteen to request removal of content featuring themselves as minors.²¹⁰ But under Utah’s system, creators can still refuse to comply with removal requests. The law provides only an ex post, litigation-dependent right of action for former kidfluencers to challenge a creator’s refusal; at that point, a court would then consider the “emotional harm or substantial embarrassment” the challenged content poses to the former kidfluencer and both “the interests of the content creator” as well as “the public interest served by” that content.²¹¹ Thus, while Utah and Minnesota’s protections are certainly better than nothing, they are also critically limited; because kidfluencer exploitation is so rampant and systemic, an expensive, slow, after-the-fact system of relief available only on a state-by-state basis is simply not enough to protect them.

From that perspective, Arkansas and Montana have gone the furthest toward effecting an adequate legal solution: both states’ kidfluencer laws put responsibility on platforms, though with some caveats, to enforce kidfluencer protections, including removing kidfluencer content upon request. In Montana, creators are removed from the takedown process entirely; instead, Montana’s law triggers platforms’ responsibility to “take all reasonable steps to permanently delete” kidfluencer content as soon as former kidfluencers (who are at least eighteen) request removal.²¹²

Arkansas’ kidfluencer law is arguably even more sweeping; under that law, platforms must allow for removal requests by kidfluencers and then notify content creators of their obligation to remove the applicable content within thirty days; if creators do not do so, platforms “shall review and take all reasonable steps to remove the content.”²¹³ Unlike Montana, Arkansas does include caveats to platforms’ mandated removal, including for content that the platform finds “sufficiently newsworthy or of other public interest to outweigh the privacy interests” of the kidfluencer in question.²¹⁴ However, Arkansas also elevates platforms’ responsibilities in an additional, consequential area: its law makes it “unlawful to financially benefit from knowingly producing or distributing publicly . . . any visual depiction of a minor with the intent to sexually gratify or elicit a sexual response in the viewer or any other person.”²¹⁵ This section mandates platforms to “develop and implement a risk-based strategy to help mitigate risks related to monetization of the intentional sexualization of known minors” in a content-creation context; the structure of such strategies is at platforms’ discretion and can include monetization policies, “automated system[s] to identify and enforce against potentially problematic content and accounts,” and “[q]uality assurance processes” to monitor the effectiveness of platform’s policies in this area.²¹⁶ While the precise standard for determining whether content has “the intent to sexually gratify or elicit a sexual response” under Arkansas’ law are unspecified, much of the PRI Squad’s content could likely qualify. Thus, in addition to placing responsibility on social-media platforms to effectuate kidfluencer content removal, Arkansas also made the critical first step, at the state level, toward mandating that platforms develop ongoing procedures to monitor for at least some kinds of problematic kidfluencer content, and, ideally, prevent exploitation before it occurs.

Overall, both Arkansas and Montana’s regulatory approaches—situating platforms as the enforcers of newly-recognized kidfluencer privacy and publicity rights—represent the most effective way forward for a comprehensive federal scheme to protect kidfluencers.

IV. THE SOLUTION—FEDERAL LABOR AND PRIVACY PROTECTIONS AND REQUIRING SOCIAL-MEDIA PLATFORMS TO ENFORCE KIDFLUENCER RIGHTS

Kidfluencers need comprehensive labor and privacy protections, and because the Internet transcends the geographical limits that made state-specific labor regulations for child actors practical, adequate kidfluencer labor and privacy regulations must be set at the federal level. But once enacted, these comprehensive federal protections will require an effective enforcement mechanism—and the social-media platforms that host kidfluencer content are likely the entities best situated to moderate and enforce kidfluencer regulations. Thus, a robust set of federal kidfluencer labor and privacy protections would include an imposition of liability on platforms that feature kidfluencer content on monetized accounts (thereby creating revenue for the platform itself as well as for those managing the kidfluencer accounts) when that content is produced under conditions that violate kidfluencer laws. So far, only two states, Montana and Arkansas, have placed legal responsibility squarely on platforms to remove kidfluencer content upon request; lawmakers seeking to adequately protect kidfluencers must follow these states’ lead by pushing for federal measures that regulate kidfluencers’ labor and privacy and enable platforms to enforce those laws.

A. Section 230 and Techlash

Any conversation surrounding potential liability for online platforms based on a platform’s third-party content implicates section 230 of the Communications Decency Act of 1996 (“section 230”). Recognizing how “[t]he rapidly developing array of Internet . . . services available to individual Americans represent[s] an extraordinary advance in the availability of educational and informational resources,”²¹⁷ and how the Internet “ha[s] flourished, to the benefit of all Americans, with a minimum of government regulation,”²¹⁸ section 230 provides limited immunity to any online platform for content posted by third-party users.²¹⁹ In the nearly thirty years since section 230’s passage, its supporters have credited it with enabling some major online platforms to grow from start-ups into global giants,²²⁰ particularly with regard to the largest companies commonly referred to as a whole as “Big Tech.”²²¹ And many of those supporters have defended section 230 in the last ten years as an increasing number of detractors began voicing concerns over Big Tech’s ever-growing and seemingly unchecked power, a phenomenon dubbed “techlash.”²²²

Kidfluencers are glaringly missing from this increasingly heightened debate over the virtues and dangers of section 230 and, more broadly, about the responsibilities or lack thereof that Big Tech owes to users. Any federal proposal to impose liability upon platforms who violate laws designed to prevent kidfluencer exploitation will prompt questions about whether imposing such liability would infringe platforms’ rights under section 230 and their constitutional rights to freedom of expression. Crucially, however, section 230 itself already includes limiting language: in addition to protecting the right of platforms to “voluntarily” and “in good faith” “restrict access to or availability of material that [the platform] considers to be obscene, lewd, . . . or otherwise objectionable, whether or not such material is constitutionally protected,”²²³ section 230 dictates explicitly that it has “[n]o effect on intellectual property law.”²²⁴ Thus, new kidfluencer regulations, if modeled after this exception for intellectual property law, could be fully consistent with section 230.

B. Contributory Liability as a Basis for Platform Enforcement

In keeping with section 230’s unrestricted exception for intellectual property concerns, the Digital Millennium Copyright Act (“DMCA”), passed two years later, empowers copyright owners to compel online entities to remove infringing material hosted on their platforms or otherwise face liability.²²⁵ Under the DMCA’s “notice-and-takedown system,” online platforms can qualify for limitations on liability, known as safe harbor provisions, provided that they comply with an owner’s takedown request.²²⁶ Thus, the system enables copyright owners to safeguard their work from infringement while avoiding litigation and also ensures, via its safe harbor provisions, that online platforms are not impeded in their industrial development by these intellectual property protections. The DMCA has roots in common law contributory liability doctrine in recognizing partial responsibility on the part of online entities for infringement happening on their platform.²²⁷ In this way, the DMCA serves as an analog for a potential liability model for platforms hosting kidfluencer content produced in violation of expanded regulations.

In the kidfluencer context, online platforms also go a step further than inadvertent sharing of objectionable material—they profit directly from kidfluencer content by collecting a percentage of advertising revenue from the accounts they monetize.²²⁸ Thus, under expanded labor and privacy protections for kidfluencers, adapted from existing laws for child actors and child social-media users, platforms hosting monetized kidfluencer accounts would more than meet the criteria for contributory liability for profiting off of content produced in violation of these new regulations. Yet at the same time, platforms are also likely the most well-situated party to enact protocols that can effectively monitor and enforce updated kidfluencer laws.

Platforms can develop a more robust application process for kidfluencer account monetization requiring that adults running kidfluencer accounts to comply with the same laws regulating studios employing traditional child entertainers: obtaining permits to employ minors, tracking and reporting kidfluencers’ working hours and staying within working hour limits, providing proof of regular education and on-set supervision, and setting up protected trust accounts to safeguard kidfluencers’ compensation. Under this regulatory system, would-be kidfluencer accounts would have to meet these requirements as part of applying for account monetization, and existing kidfluencer accounts would have to provide documentation showing that they are maintaining these mandates to retain their monetized status on a continuing basis. Further, if federal protections for kidfluencers’ privacy were enshrined in an expansion of COPPA, online platforms could also be required to actively monitor kidfluencer accounts’ adherence to COPPA’s expanded mandates; specifically, platforms must obtain consent by teenagers and provisional consent by parents of children under thirteen to appear in monetized content and provide a means to revoke consent and compel removal upon request. Just as proof of continuing adherence to expanded kidfluencer labor regulations should be required for kidfluencer accounts to achieve monetization, so too should kidfluencer accounts be required to demonstrate compliance with privacy protections in order to keep gaining revenue. Online platforms already have established procedures to conform with COPPA’s existing mandates for children’s data collection that are similar to DMCA’s safe harbor criteria—in particular, COPPA includes its own self-regulatory guidelines for platforms to keep themselves eligible for COPPA’s longstanding safe harbor provisions. Thus, platforms are poised with a foundation to further develop protocols that monitor compliance with kidfluencer regulations. And despite the ongoing debate over the fate of section 230, imposing liability for online platforms in the kidfluencer context arguably need not threaten section 230, or platforms’ free expression more broadly, at all; such liability would not be without precedent given section 230’s blanket exception for intellectual property infringement, the DMCA’s subsequent imposition of the notice-and-takedown system, and COPPA’s longstanding restrictions on how online platforms interact with child users.

CONCLUSION

While some former kidfluencers like Shari Franke have explicitly called for a ban on kidfluencing entirely, such a drastic measure would be remarkably difficult, if not impossible, to achieve. At the same time, though the PRI lawsuit is unique, as of this writing, in its involvement of kidfluencers personally suing adult content producers, the PRI plaintiffs are part of an ever-growing cohort, the oldest of whom are only beginning to reach adulthood. As the first generation of kidfluencers comes of age while regulations to protect kidfluencers remain, at best, in their infancy, courts could see a rise in litigation by former kidfluencers only now independent enough to seek legal recourse. Rather than Shari’s proposed all-out ban on kidfluencing or a slew of merely reactive, post-exploitation lawsuits in the spirit of the PRI lawsuit, the more promising approach to addressing kidfluencer exploitation lies in enacting strict labor and privacy regulations at the federal level; once these regulations are created or expanded, lawmakers can then explore mechanisms for imposing liability on social-media platforms that host kidfluencer content produced in violation of these expanded regulations. If kidfluencers are to remain a fixture of the content-creator world (and they likely will, given the pervasiveness of their online presence as well as their financial value to the platforms that feature them), their career field needs to be regulated like the bona fide occupation that it is. Thus, federal law must ensure the right of kidfluencers in every state to limits on their working hours, guaranteed access to education, on-set supervision and advocacy, and compensation safeguards—the same protections that the most stringent states afford to professional child actors.

But merely applying labor regulations for child actors to kidfluencers as an overall protective measure still falls short because the nature of kidfluencing itself presents an unprecedented privacy intrusion. Child actors have built-in privacy protections by virtue of conducting their work on a set, away from home, playing characters. Their work, by and large, is only seen by people who pay to see it and is only broadcast subject to intellectual property and other licensing agreements between production companies and distributors. In contrast, when kidfluencers’ parents say, “Action!” the entire world immediately has an unrestricted window directly into their personal, private life. Thus, just as federal law must be expanded to regulate kidfluencers’ labor, COPPA should be amended to explicitly cover kidfluencers and also to make parental consent to collection of kidfluencers’ personal data provisional only—once children turn thirteen, they must be able to retroactively withdraw consent for data their parents turned over on their behalf. Under this new regulatory system, social-media platforms would be charged with monitoring kidfluencer accounts’ adherence to these requirements and suspending accounts in violation, drawing upon their existing safe harbor guidelines that currently ensure their compliance with COPPA and the DMCA as a model. This all-encompassing approach will serve to close the gaps in kidfluencer protections as quickly and effectively as possible, preventing future generations of kidfluencers from needing to wait to reach adulthood before they can pursue legal recourse after years of exploitation. It defies common sense that, as far as kidfluencers’ labor and privacy are concerned, the younger—and more vulnerable—they are, the fewer rights they have.

APPENDIX

My name is Shari Franke. My mother, Ruby Franke, is the prominent family vlogger arrested last year for child abuse. I don’t come today as the daughter of a felon, nor a victim of an abnormally abusive mother. I come today as a victim of family vlogging. My goal today is not to present any idea of a solution to this problem, but to shed light on the ethical and monetary issues that come from being a child influencer.

When children become stars in their family’s online content, they become child influencers. It is more than just filming your family life and putting it online. It is a full-time job with employees, business credit cards, managers, and marketing strategies. The difference between family vlogging and a normal business, however, is that the employees are all children. Children, from before they are born to the day they turn eighteen, have become the stars of family businesses on YouTube, Instagram, and most other social media platforms.

Utah is specifically a hotspot for family content due to the LDS culture around family and the goal to share the church with the world. We also have large families which makes family content more lucrative. Specifically, many parents film their regular family life as an online video blog, called a vlog. But I want to be clear that there is never, ever a good reason for posting your children online for money or fame. There is no such thing as a moral or ethical family vlogger.

At first, family vlogging is an alluring business that can bring high revenue. For my family, it became the primary source of income as is often the case for full time family vloggers. Many child influencers are paid for their work as I was, and this money has helped me in my adult life. However, this payment was usually a bribe. For example, we’d be rewarded $100 or a shopping trip if we filmed a particularly embarrassing moment or an exciting event in our lives. Or other times, simply going on vacation was expected to be payment enough—because most kids don’t get to go on regular and expensive trips. Never mind the fact that the child’s labor is actually what paid for the vacation or trip. There is no law in place to guarantee that child influencers get any money from their work. If a family account does not become an LLC, parents are taxed heavily for paying their children. But parents receive tax write offs for the regular clothes they wear, the gas money used to drive places, and even the houses they live in—anything that is filmed can be written off. And even after registering their business as an LLC, there is no guarantee that children will get paid. Any payment that happens is under the table, with no paper trail. And how do we determine how much a child should make from appearing in family content? What price is worth giving up your childhood?

But despite any monetary payment children may receive, don’t let this excuse the 24/7 labor that these children are subjected to. As a child, I was fully aware that I was an employee. The business was successful when I was happy or when I shared my hardships with the world. Some of our most popular videos were when my eyebrow was accidentally waxed off, and the whole world saw a crying teenager when I just wanted to mourn in private. Or the time I was violently ill and got the leading role in the video [for] that day. My friends became scarce because dates were filmed and none of my friends wanted to be on camera. The camera never stops and there is no such thing as a [vacation] from filming.

At the time, I’d tell you that I had a choice in what was filmed. But I’ve come to learn that every child influencer, in a way, suffers from Stockholm syndrome. Most child influencers would probably tell you they have full control over what is posted; but the reality is that their parents bribe and shame them into posting their most vulnerable moments. In fact, many child influencers may tell you they enjoy their work because of the monetary perks they receive, or the fun experiences that they can have. After all, what child would say no to a fun vacation or shopping spree if all they needed to do was film [a mental breakdown or] an embarrassing moment?

But as children, we do not understand the consequences of filming our lives and [having it] post[ed] for the world to see. We cannot give consent to our parents to post our lives. In any other context, it is understood that children cannot give consent—but for some reason, people think family vlogging is different. I did not realize the impact that filming as a child would have on me now. My social media became flooded with rumors of having sexual relations with my own brother, to being called a baby birthing machine at the age of thirteen. All these things have stuck with me, and I will forever live between the ages of thirteen to seventeen in many of my viewer’s minds. In addition, pedophiles stalk the internet, specifically seeking out child influencers. I promise you that the parents are aware of these predators and choose to post their children anyway.

I understand that this a big issue to tackle. I am not asking you to ban family vlogging, though that is my end goal. I also understand that as Utahns, we don’t appreciate big government overreach. But when it comes to protecting children, it should be a bipartisan issue. The only people harmed by child influencer laws are the parents exploiting their children. While this may not seem like an issue now, as child influencers in Utah continue to grow up, I foresee there will be legal crises with these children realizing that vlogging has brought severe emotional distress. Or these kids may realize they don’t have an appropriate amount of money to show for their [forced] labor. After all, how does that child know how much they should have made versus what their parents may or may not have paid them? Let’s deal with this now, before we reach that point. But even despite a good paycheck, I want to be absolutely clear that there is no amount of money can justify selling your soul, as a child, to the world. In no other industry would we justify unregulated child labor with a huge paycheck, and we should not do that here.

If I could go back and do it all again, I’d rather have an empty bank account now and not have my childhood plastered all over the Internet. No amount of money I received has made what I’ve experienced worth it. While I don’t have all the answers, nor many feasible solutions for this problem, I am proud to be one of the first child influencers in the state of Utah to speak against this issue. I don’t want people to look at me and blame my unique circumstances, with a mother in prison, to the Franke criminal case. Family vlogging ruined my innocence long before Ruby committed a crime. I promise you that my experiences are not unique and are happening to child influencers all over Utah and the country. Let’s tackle this issue before it becomes a bigger crisis than it already is. Thank you.²²⁹

99 S. Cal. L. Rev. 449

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Elinor J. Haddad*

*Executive Postscript Editor, Southern California Law Review, Volume 99; J.D. Candidate, 2026, University of Southern California Gould School of Law; B.A. Law, History, and Culture, 2016, University of Southern California. This Note is dedicated to the memory of my grandmother Nan Johnson. Thank you to my advisors Professors Jonathan Barnett and Jef Pearlman for their support and guidance; to Cristopher Swain for his unconditional encouragement; to Mark E. Haddad for his faith and wisdom; to Miranda Johnson-Haddad for her unwavering support; to Madeline Goossen and Robyn Kazemaini for their loyal mentorship; and to Kelcey Sholl, Isabella Flaherty, Nicholas Considine, and the staff of the Southern California Law Review for their thoughtful and dedicated editing.

Hiring and Firing Based on Political Views

January 2026January 2026Scott Altman*

INTRODUCTION

A law professor’s Wall Street Journal op-ed urged law firms not to hire anti-Zionist students who, in his words, “advocate hate and practice discrimination.”¹ Although discriminating against employees or prospective employees based on political speech is illegal in some places, including California, where the professor works,² employers have announced similar positions,³ and private organizations have emerged to facilitate employment denial and other social and economic penalties for pro-Palestinian students, professors, and professionals.⁴

These events are hardly unique. Employers have excluded workers because of their views on sex or gender identity, including opposition to same-sex intimacy,⁵ support for same-sex marriage,⁶ and opinions that there are only two immutable sexes.⁷

Employers have fired employees for political speech or affiliations. An English company fired a bus driver after he won an election as a member of a far-right political party with racist positions.⁸ After the recent killing of right-wing activist Charlie Kirk, some conservatives successfully called for doxxing and firing people seen as celebrating his death or criticizing his views.⁹ Disney fired The Mandalorian actor Gina Carano because she compared the treatment of Trump supporters to that of Jews during the Holocaust.¹⁰ The Metropolitan Opera fired Russian-Austrian singer Anna Netrebko for refusing to condemn Vladimir Putin after he invaded Ukraine.¹¹ Seventy-five years ago, people in some U.S. industries were fired and shunned for perceived affiliation with the Communist Party.¹²

How should we assess these actions? Should the law forbid employment denial based on political or moral views, association, or speech outside the workplace? Should our assessment depend on whether the employee has reasonable views? The existence of organized boycotts targeting unpopular views? The employer’s motive (non-complicity, association, hatred, punishment, profit, job-effectiveness)? The employer’s size, the kind of job, or the procedural posture (firing versus not hiring)?

How do these examples differ, if they do, from #MeToo era efforts to hold sexual harassers accountable, including public dissemination of alleged harasser lists¹³ and the firing of accused harassers?¹⁴ Is doxxing alleged harassers different from doxxing alleged antisemites or alleged Communists?

This Article has two aims. First, it explains why ideological employment exclusion is typically wrong and appropriately prohibited. Individuals and society suffer serious setbacks from ideological exclusion: undermining personal integrity (a person’s ability to live according to their values), chilling public discourse, and exacerbating affective polarization (the tendency to dislike and distrust those with opposing views). Employers, by contrast, have less at stake. Sometimes, employers use ideological exclusion to pursue unreasonable goals, including corruption, unjust punishment, and disrespectful uses of non-complicity. At other times, employers use ideological exclusion for legitimate purposes, including protecting their associational rights and speech, as well as pursuing profitability. However, employers can usually achieve these goals without undermining employee authenticity or valuable public ends.

Second, I use these examples of ideological exclusion to examine the moral limits of social pressure, helping to sort out a longstanding puzzle. Criticizing, shunning, shaming, and boycotting are essential to our freedom. We use them to communicate, achieve political goals, punish wrongdoers, enforce norms, and exercise associational freedom. They also threaten to undermine vital interests. We use them abusively to silence dissent, punish people unjustly, and treat excluded people with unwarranted disrespect. This puzzle is often linked to John Stuart Mill. He embraced our right to shun and criticize the objects of our contempt and valorized the social pressure created as the natural consequence of misbehavior. However, he feared these same

techniques would undermine freedom, inhibiting their targets’ speech and inducing stifling conformity.¹⁵

I offer an account of social power’s limits that might address Mill’s puzzle. The account emphasizes fair norms of social cooperation. Most people want to speak freely, control associations, exert political influence, and punish wrongdoers. We also want to avoid pressures that undermine our freedom of association and speech, as well as unjust punishment. These interests sometimes conflict, and a fair resolution of conflicts requires setting reasonable terms of cooperation—terms justified by moral arguments that all reasonable people can accept. This Article uses employment denial to explore how fair norms of cooperation limit the permissible use of intentional and unintentional social pressure.

The Article includes five Parts. Part I outlines traditional justifications for banning ideological employment exclusion: it gives employers excessive control over employees’ lives, undermines democratic institutions, constitutes wrongful discrimination, and violates employee speech rights. These accounts are promising but insufficient. Part I then offers the Article’s central argument. Allowing ideological employment exclusion unfairly distributes opportunities for living with integrity and unnecessarily contributes to two social problems: self-censorship and political polarization. Part I presents the argument in general terms. Later parts fill in details and consider examples.

Part II discusses the intentional use of social pressure to change integrity-connected behavior. It argues that intentional uses of social pressure are rarely justified when the target behavior is central to integrity. They often aim to corrupt targets or impose unjust punishments. When intentional social pressure is used to impose deserved punishments, it risks dangerous expansion.

Sometimes, employers do not aim to change employee behavior. Instead, they risk public and private harm while pursuing aims connected to employer integrity, such as non-complicity, non-association, or employer speech. Non-complicity means avoiding certain connections (such as employment) with someone else’s allegedly immoral behavior. Part III argues that we should reject employer non-complicity as disrespectful and

that most employers can protect their integrity interests in speech and association in less harmful ways.

Part IV examines employer financial goals. For most employers, these too can be advanced in less harmful ways. A conclusion follows, offering final reflections that explain why the Article’s moral arguments counsel legal regulation. It revisits Mill’s puzzle and the moral limits of social pressure, returns to the examples that began the Article, and addresses the objection that we should allow employment exclusion against people who express hatred or other harmful views.

The Article does not detail how to structure legal rules, but several models are available. Throughout Europe and in several U.S. states, employment laws prohibit dismissal and sometimes refusal to hire based on philosophical or political beliefs, as well as speech and association outside of work.¹⁶ These laws sometimes exclude hate speech, speech advocating violence, or speech that is unconnected to the speaker’s worldview.¹⁷ They also exempt some employers and sometimes provide defenses for business necessity. This Article focuses on hiring and firing private-sector employees based on their associations and speech outside the workplace on topics unrelated to their employment. Questions about speech in and about the workplace (such as criticizing an employer or seeking higher wages or unionization) and in government employment are important but raise distinct issues.¹⁸

I. The Harm of Ideological Employment Denial

Like everyone else, employers have property and associational rights. In our market economy, absent pressing contrary interests, perhaps employers should be able to select employees as they wish, including based on the employees’ views and values.

Moreover, social pressures, such as shunning, shaming, and boycotting, serve valuable functions. When people do or say objectionable things, we communicate our disdain and enforce norms through social exclusion. As people often say, “Freedom of speech does not mean freedom from consequences.” Such pressure also supplements legal regulation. For example, the #MeToo movement used shaming and shunning to punish and deter illegal behavior and reinforce values. Employers have a presumptive right to participate in social exclusion that communicates disdain and enforces norms.

Nevertheless, the examples mentioned above strike people as morally and legally problematic. What is wrong with denying someone employment based on their views, speech, and associations? In the next Section, I briefly evaluate four standard accounts and explain why they need to be supplemented. I devote the following two Sections to outlining an alternative account: ideological employment exclusion unreasonably undermines employee efforts to live with integrity and exacerbates social problems of censorship and polarization.

A. Four Traditional Approaches

Writers often approach ideological hiring and firing from the perspectives of employment law or democratic theory. Progressive employment scholars situate it in the broader problem of employer power: we should abolish at-will employment and limit employers’ control over employees’ private lives.¹⁹ They lump ideological job denial with controlling employees’ diets, smoking habits, or sex lives.²⁰ Democratic theorists focus narrowly on exclusion based on party affiliation or support for specific candidates or ballot measures. Allowing employers to pressure employees about votes or political donations distorts our political process.²¹

I agree with both views, but they do not exhaust the problems with ideological hiring and firing. Many problematic job denials are unconnected to electoral politics. Although we have reason to worry about employers controlling their employees’ lives, control over their speech seems worse than control over their smoking (and should trouble people even if they do not object to employer power generally). For these reasons, we must supplement political and power concerns with a broader account.

Two other theories might better explain the range of concerns raised by ideological employment exclusion. Perhaps denying someone a job based on their views is wrongful discrimination, much like denying them a job based on their race, religion, or sex.²² Alternatively, denying them a job based on their expression might violate their free speech rights.²³ Although these claims have merit, they are only partly persuasive without supplemental accounts.

The goals of discrimination law are disputed. Various theories emphasize anti-subordination, immutability, and formal equality. Anti-subordination accounts, which focus on unjust, persistent, and systemic disadvantages suffered by some groups, seem like a poor fit because many people who are denied employment based on their views are not subordinated. Some employers refuse to hire Trump supporters.²⁴ They are not part of a subordinated group. Nor are Anna Netrebko and Gina Carano. Although pro-Palestinian protesters are advocating for oppressed people, the protesters are not (or not uniformly) part of subordinated groups. Additionally, the companies that deny them jobs believe they support anti-subordination because they are trying to combat antisemitism. Moreover, we may wonder if some ideological groups, such as avowed racists, are justly marginalized and do not deserve protection from subordination.

Immutability is generally a problematic basis for banning discrimination.²⁵ Even if we embrace immutability, it is unclear why we should regard ideas or their expression as immutable. People change their views and choose whether to speak. So, we need a theory to explain why pressuring people to change or hide their views is unreasonable.

Finally, formal accounts of equality must be supplemented to explain which features demand equal treatment and which allow unequal treatment. Formal equality advocates often quote Dr. Martin Luther King Jr.’s statement that we should judge people not “by the color of their skin but by the content of their character.”²⁶ One would think that a person’s beliefs form the core of their character’s content and that judging people by their beliefs shows them appropriate respect. Additionally, employees’ beliefs might be relevant to their job performance in ways their race and religion rarely are.

A free speech account seems more promising. Speech rights are not limited to subordinated groups or immutable characteristics. If employers can fire or refuse to hire people based on their expressed views, the prospect of lost employment might chill speech, harming individuals and society.

However, unlike discrimination, which is unlawful for many private entities,²⁷ free speech requirements in the U.S.²⁸ apply primarily to governments.²⁹ Even in countries that restrict private entities from limiting speech, the mere power to chill speech does not imply a duty to facilitate open dialogue.³⁰ For example, if young people refuse to date Trump supporters,³¹ their dating choices might chill pro-Trump speech. Indeed, some evidence suggests that Republicans systematically lie about their politics on dating apps.³² Yet, refusing to date someone for political reasons does not violate their political or speech rights.

Of course, employment differs from dating in many ways, including the centrality of associational interests in dating. I devote much of this Article to explaining how employer-created incentives differ from other social pressures that might silence unpopular views. However, merely noting that social pressure can inhibit speech does not explain when and why we should regard it as violating speech rights.³³ Explaining this requires addressing Mill’s puzzle.

B. Threats to Personal Integrity

We might address Mill’s puzzle and better understand employment denial by focusing on the value of living with integrity. Integrity (also called authenticity) means living according to the values we embrace by pursuing projects that match our values, avoiding actions that conflict with them, and, at least sometimes, revealing our values to others. Speech is critical to living with integrity in the context of social pressure, because being silenced by social pressure can render someone hypocritical.³⁴

We cannot always live according to our values. Doing so may require actions that harm others, including undermining their integrity. A core goal of social cooperation is establishing institutions that enable people to live authentically and, when conflicts arise, distribute opportunities for authenticity equitably.³⁵

These institutions sometimes place the responsibility for living authentically on individuals whose integrity is at risk. People must often be resilient in the face of pressure, protecting their capacity for authentic action and resisting incentives for hypocrisy. If I change or hide my views because I fear my friends will abandon me or people will criticize me, the fault lies with my weak character, not with my friends or critics. Resisting hypocrisy is my responsibility because criticism and friendships based on shared values are vital institutions that could not otherwise exist. This explains why those who will not date Trump supporters do not violate their speech or association rights. Nevertheless, a society in which people with unpopular views are broadly shunned and unable to find jobs does not sufficiently support authenticity. The question raised by the examples at the start of this Article (and the core of Mill’s puzzle) is how to allocate responsibility for sustaining authenticity between individual resilience and social restraint. If we need social restraint, sometimes the law can help achieve it.

Allocating opportunities for authenticity equitably demands that we sometimes constrain the use of social pressure.³⁶ Social pressure is usually wrong when used intentionally to change other people’s behavior in ways that undermine their integrity. As I will explain in Part II, it often threatens to corrupt targets or impose social punishments on people who are not culpable. Even when used for legitimate purposes, such as just punishment, the risk of expansion to illicit goals requires caution about using social pressure intentionally to alter integrity-connected behavior.

Sometimes, we inadvertently impose social pressure while pursuing other aims in ways that risk undermining other people’s integrity. Such unintended pressure is sometimes appropriate, as it is in the dating example. However, risking other people’s integrity is sometimes unjustified because our aims are illicit or can be achieved in less harmful ways. A fair opportunity to live with integrity will not favor employers pursuing illicit aims or goals that can be achieved without undermining integrity.

C. Two Public Harms: Affective Polarization and Censorship

In addition to undermining employee integrity, ideological employment denial contributes to two public harms: affective polarization and censorship.

Affective polarization (our tendency to demonize those who disagree with us) is a growing problem. We increasingly distrust those with different views, attribute bad motives to them, avoid interacting with them, live in separate places, and get information from different sources.³⁷ This problem fuels the demand for employment exclusion. As we increasingly dislike and distrust those with different views, we avoid connections with them, including workplace connections. In turn, employment denial might exacerbate polarization by increasing ideological segregation and distrust through non-exposure.³⁸ In this way, polarization and employment denial might form a vicious cycle.

Banning ideological employment denial might encourage politically integrated workplaces and support a willingness to work together despite political differences. We should not normalize the unwillingness to associate with or cooperate with people whose views we disdain. Instead, we need opportunities to build trust in depoliticized environments. An appropriately supportive workplace is a good candidate.

This argument for workplace integration mirrors Cynthia Estlund’s claim about race discrimination. She argued that laws against employment discrimination can foster more public cooperation and social trust outside the workplace.³⁹ We ban race discrimination primarily because it wrongs victims, but a side benefit might be that doing so facilitates cooperation across racial lines. The same might be true for ideological workplace integration. We should ban ideological exclusion because it undermines employee integrity for insufficient reasons. An added benefit to banning ideological exclusion might be that it reduces polarization. Some evidence suggests that workplace exposure to people with different political views fosters political tolerance.⁴⁰ As with race discrimination, ideological integration may require legal rules to prevent exclusion.

The benefits of ideological integration do not depend on workplaces fostering political discussion or expression. Indeed, a depoliticized workplace, where such discussions are discouraged, may facilitate trust-building across ideological lines, allowing people to view their political opponents as whole individuals.⁴¹ Of course, depoliticization is not appropriate for all workplaces.⁴² But for many employers, it is feasible. The argument does not depend on businesses seeking or benefiting from ideological diversity if providing diversity does not impose significant internal burdens (discussed in Part IV). Like Estlund’s, my argument offers a reason to ban exclusionary policies. The resulting workplace diversity might lead to more cooperation.

In addition to exacerbating polarization, ideological employment exclusion might undermine the public benefits of free speech. Although the actions of a few employers who fire or refuse to hire employees for their controversial speech would not affect public discourse, many employers might (in concert or merely in parallel) exclude employees with unpopular views. They might do so intentionally or based on algorithms that screen applicants’ social media. When paired with organized groups and politicians pressing employers to boycott employees with unpopular views, these exclusions could chill expression. Chilling is unnecessary because (as I argue below) most employers’ goals are either illicit or can be achieved without resorting to employment denial or speech suppression.

This speech-chilling concern may seem alarmist. After all, most employers seem to care little about employee speech outside the workplace. If, on occasion, a few law firms refuse to hire protesting students or an opera company fires a singer, those individuals might suffer an unjust penalty. However, few people will change their behavior to avoid an exceedingly unlikely job denial.

Perhaps the worry is alarmist. However, culture wars and cancel culture appear to be intensifying, as is the use of algorithms to screen job applicants, including their social media activity.⁴³ A rational person concerned about job access might err on the side of caution, avoiding any controversial statement, even if there is no current movement to deny jobs based on a specific controversy.⁴⁴

D. Summing Up

The argument in Part I outlined three harms caused by ideological employment exclusion: it threatens integrity, exacerbates polarization, and chills speech. However, these harms are not necessarily things we should ask employers to prevent. As I noted earlier, we need reasons to ask employers to help preserve free speech and employee integrity rather than impose on employees the responsibility to resist the temptations of silence.⁴⁵

Part II will outline why employers should be responsible for some of these harms. Employers often use social pressure for illicit purposes. They also impose social pressure for legitimate purposes that could be pursued in less harmful ways. Before elaborating on these ideas, I want to recall traditional worries about employer power and anti-subordination. I mentioned that power-based accounts did not fully capture the wrong of employment exclusion, which seems more problematic when it is controlling employee speech than other aspects of employees’ lives. As to anti-subordination, many excluded employees (including famous opera singers and law students who might be denied jobs at large law firms) are not necessarily members of subordinated groups.

Although I stand by this position—that employer power and anti-subordination concerns do not fully account for the wrongfulness of ideological employment exclusion—these concerns do explain why employers’ wrongful use of social pressure is especially problematic. The harm that employers inflict on integrity, polarization, and free speech would not be possible if employers did not exercise power over their employees. The need for employment as a source of basic sustenance is why employer exclusion creates intense social pressure, and this is one reason why asking employees to resist it is problematic.⁴⁶ Additionally, although some employees who are excluded based on ideology are not among the most vulnerable in society, employer power often silences vulnerable people and threatens to suppress speech supporting subordinated groups.⁴⁷ Part II will emphasize other reasons for thinking that employer exclusion results in unjust distributions of opportunities for authenticity. However, the source of employer social power and its frequent use to undermine integrity for those with little power and suppress speech advancing their rights further justify restricting employer freedom rather than imposing duties on employees to resist pressure on their integrity.

The following sections elaborate on my core claims—that employers’ interests do not justify harms to integrity, speech, and polarization because employers either aim at illicit ends or can pursue legitimate goals in less harmful ways. Part II addresses intentional efforts to change employee behavior. Part III examines employer integrity interests in non-complicity, non-association, and speech. Part IV considers employer economic interests.

II. Intending to Change Behavior through Social Pressure

Ideological boycotts sometimes aim to corrupt their targets or punish people who do not deserve punishment. To the extent that employers aim for these outcomes, we have reason to limit their power to do so, both to fairly allocate opportunities for integrity and to combat the public harms of censorship and polarization. Even if employers intend to change integrity-related behavior for legitimate reasons, such as deserved punishment, we should often restrict such efforts, because they cannot easily be confined to legitimate cases, and we have reason to fear that they will be weaponized as tools in culture wars.

A. Corrupting Aims

Organized commercial shunning is typically called a boycott.⁴⁸ Some boycotts intentionally pressure targets to change, hide, or act against their values by offering financial or other incentives. These boycotts are corrupting (they aim to corrupt their targets) because they seek to induce others to act for morally inappropriate reasons.⁴⁹ Suppose a business donates profits to charities that I think are immoral. If I organize a boycott to induce the owners to stop supporting these causes, I am treating them disrespectfully. I try to entice them to abandon or hide their moral views or to refrain from acting on them. I do not hope to persuade them that their views are wrong. Instead, I aim to pressure them into hypocrisy by offering a bribe to compromise their morality. I would reject money as a legitimate reason to change or hide my moral views. So, I should not aim to entice others to abandon their values for profit.⁵⁰

Of course, rejecting commercial ties with someone can occur outside an organized boycott and need not aim to change anyone’s behavior. Below, I address several examples, including actions based on non-association or non-complicity. Moreover, boycotts aimed at changing behavior are not always corrupting. Some boycotts target businesses to change their profit-maximizing choices, such as an anti-sweatshop boycott encouraging a manufacturer to provide better working conditions. The boycott intentionally pressures the business to change its behavior. However, the boycott does not corrupt its decision because the choice (to exploit or endanger workers) aims at profitability. Corruption arises when social or financial pressure entices someone to change their behavior for reasons the target considers morally irrelevant.⁵¹ In the anti-sweatshop boycott example, there is no corruption, because the employer was already committed to making decisions based on profitability, and the boycotters tried to make exploitation less profitable.⁵²

Another example of non-corrupting pressure intended to change behavior is shunning or shaming people for actions that are unrelated to integrity. If I shame you for failing to contribute to a group project you agreed to join, hoping to spur increased contribution, the pressure to contribute is not corrupting, assuming your non-contribution was due to mere laziness rather than a principled opposition to contributing. Such social pressure does not undermine your effort to live according to your values by tempting you to embrace irrelevant reasons. Your laziness likely does not reflect the values you embrace.

The employment boycott against pro-Palestinian student activists seems to have been aimed at corrupting them. The professor who urged law firms not to hire anti-Zionist students supported the boycott by saying, “When students face consequences for their actions, they straighten up.”⁵³ He regarded the students’ views and associational choices as hateful. So, he aimed to deter them from expressing those views or continuing their associational choices by creating financial consequences. Admittedly, the professor offered other reasons for the boycott, including a concern that law firms or their clients might not want to affiliate with allegedly antisemitic students—associational and economic concerns rather than a corrupting incentive.⁵⁴ However, the “facing consequences” and “shaping up” language suggest that creating a corrupting incentive was a central aim of his boycott plan.

B. Punitive Aims

Social pressure that is intended to influence behavior is not corrupting if it seeks to deter and punish wrongdoing.⁵⁵ Social punishments supplement state regulation and enforcement as a means of preventing harm.⁵⁶ For example, much of the #MeToo movement’s success relied on boycotts, shaming, and shunning to punish and deter sexual harassment.⁵⁷ That movement reminds us that some speakers deserve punishment for culpable expression: their speech causes harm and contributes little to debate. Workplace harassment laws appropriately restrict harassing speech that undermines workplace equality.⁵⁸

Perhaps a comparable idea applies to hate speech and employment exclusion. Although courts in the U.S. have not upheld hate speech laws, there are plausible moral arguments for punishing hate speech, which harms people, undermines equality and respect, and (if narrowly defined) contributes little to debate or knowledge.⁵⁹ We might consider embracing hate speech curtailment by non-governmental forces, because social pressure can help combat the harm of hateful ideas by punishing those who express them.⁶⁰ Job denial might deter and punish hate speech, much like shaming and shunning deter and punish sexual harassment.⁶¹

Although social punishment for hate speech has some appeal, we should approach it cautiously. Even when free speech and enforced orthodoxy are not at stake, social punishment is problematic; it circumvents due process and other legal protections, such as the requirement of proof beyond a reasonable doubt, the right to cross-examine witnesses, the right to appeal, and rules against disproportionate punishment. Punishing speech adds new dangers to these general worries.

The appeal and the dangers of this approach are illustrated by punishing pro-Palestinian protesters. The appeal lies in trying to combat antisemitism, a problem I do not mean to minimize. Many Jews viewed recent campus pro-Palestinian protests with concern, connecting them with antisemitism and antisemitic violence. They viewed refusals to condemn Hamas and chants of “from the river to the sea” as barely coded calls for violence against Jews.⁶² When paired with rising antisemitic violence,⁶³ including violence and harassment during some protests⁶⁴ and claims of discriminatory behavior by universities,⁶⁵ they saw the need to condemn and punish antisemitic rhetoric and advocacy.

The dangers of punishing speech are equally evident in protester boycotts. One danger is punishing people for non-culpable speech—speech that includes political ideas or does not embrace racial and religious hate. Boycotters cite several objectionable actions by campus activists. Student organizations would not invite speakers who supported Israel’s right to exist,⁶⁶ and protestors refused to condemn Hamas⁶⁷ and used slogans such as “from the river to the sea,” which boycotters interpret as a call for the violent removal of all Jews from Israel.

Of course, some protesters deserve punishment. They engaged in culpable behavior, including violence,⁶⁸ threats of violence, targeted harassment,⁶⁹ the use of racial and religious epithets and stereotypes,⁷⁰ and statements that Jews deserve to die.⁷¹ However, the proposed boycott did not target only protesters who were credibly charged with such wrongdoing.⁷² Nor was the violence and harassment committed by some protesters so widespread that we can presume all protesters participated.

I believe most student protestors do not deserve punishment. The speech and associational acts targeted by boycotters differed from harassment, epithets, stereotypes, and calls for violence.⁷³ Their purposes and intended meanings were ambiguous, and some reasonable interpretations of their speech included appropriately protected political ideas.⁷⁴ This ambiguity and political content argue against culpability.⁷⁵ Although political speakers sometimes use ambiguous statements to dog-whistle intentionally hateful ideas, it seems unlikely that most student protestors had that intent.

Beyond ambiguity and political content, we should protect statements made during protests that would be unacceptable in other contexts. Discourteous and violent-sounding speech has a traditional home in political protests and social movements.⁷⁶ Provocative slogans draw attention to causes and build enthusiasm; they are rarely literal statements of belief or intent. South African anti-Apartheid protestors sometimes rallied around “one settler, one bullet.”⁷⁷ Anti-police protesters in the U.S. invoked “No justice, no peace” or “All cops are bastards.” The gun rights movement repeated, “I’ll give you my gun when you take it from my cold, dead hands.”⁷⁸ Malcolm X urged “justice by any means necessary.”⁷⁹ Such slogans vary in whether they can be interpreted as non-violent or risk inciting actual violence. But they are commonly used to protest injustices.

Some people are unpersuaded by the claim that most pro-Palestinian student protesters were blameless.⁸⁰ Although I do not share this view, even if it is correct, social punishment for the protestors’ speech is problematic. One narrow reason is that punitive attitudes toward students (especially by their teachers) are inappropriate when the students’ misbehavior stems from an insufficient understanding of complex situations. Education is a more effective and morally appropriate response to uninformed young people and the radical viewpoints they often embrace. The argument is not that these students are too young to be responsible for their actions but that wrongs born of ignorance deserve different responses from wrongs born of greed, malice, and indifference to human suffering.⁸¹

Of course, specific considerations about student speech and protest slogans do not cover all employee speech. This leads to a broader set of reasons against punishing hate speech. We often slide quickly down the slope from punishing low-content hate speech to punishing speech that offends us, advocates outcomes we think deplorable, or suggests that the speaker harbors hateful beliefs. If we leave the decision about which ideas are hateful to the private sector, we may find that the category spirals to include many political ideas that people think are morally mistaken. Perhaps critics of pro-Palestinian protests are correct that protesters’ beliefs and statements are antisemitic, harmful, and based on hatred or bias. But these beliefs and statements also represent political views; they are not mere epithets. If we declare that harmful and biased expressions are culpable even though they communicate political views, we open ourselves to declaring other views culpable. Some people regard Black Lives Matter as supporting racist views,⁸² and many other people view opposition to affirmative action and Diversity, Equity, and Inclusion (“DEI”) as racist.⁸³ That they can be described this way should not lead us to punish their expression or to let the state decide which political views are hateful enough to deserve social punishment.

Punishing those whose views we find distasteful is unjust. Such punishments are also harmful, as they threaten to censor dissenting views. This worry is hardly speculative. Social and legal pressure in the U.S. and Israel has led many advocates for Palestinian rights to fear that they cannot speak freely.⁸⁴ The Trump administration’s recent visa revocations, deportations, and attacks on universities confirm that their fears are well-founded.

The worry about expansion extends from punishing speech to punishing silence. One reason for boycotting the campus protesters was their refusal to condemn Hamas. Similarly, Hollywood professionals were fired for refusing to sign loyalty oaths,⁸⁵ and the Metropolitan Opera fired Anna Netrebko for refusing to denounce Putin. It appears that corrupting Netrebko’s choices and punishing her were among the opera’s aims.⁸⁶ Given the understandable tendency to support one’s home country, reasonable fears of retaliation for denouncing a sitting leader, and the harms of coerced speech, we should not punish a refusal to condemn people or swear allegiance.

One might hope that legally regulating social punishment could prevent its excessive use to punish valuable speech and dissenting views. Laws could permit ideological employment discrimination only against those who engage in hate speech, narrowly defined. However, this approach seems likely to fail. Lawmakers often aim to suppress dissenting views by calling them hate speech, as one can see from recent hearings in the U.S. Congress.⁸⁷ European efforts to restrict ideological employment exclusion but leave hate speech unprotected have been problematic.⁸⁸ Some people think that hate speech laws in Europe have been applied in ways that produce self-censorship.⁸⁹ In the employment context, several workers were fired for declaring that only two sexes exist, and trial courts approved their dismissals.⁹⁰ Although these trial decisions were later overturned, the disputes show how easily categories can expand.

Even if we could trust lawmakers and courts to confine ideological discrimination to narrow examples of hate speech, this approach likely could not be implemented in the U.S. due to constitutional concerns about vagueness and content-based speech restrictions.⁹¹

Injustice and censorship are not the only concerns about punishing speech. Social penalties may increasingly be used to persecute ideological enemies, exacerbating our polarization.⁹² Moreover, weaponizing employment exclusion might backfire. Many current proponents of ideological boycotts could become targets of boycotts if political sentiments change. Currently, worldwide support for Israel is falling. If Zionism became sufficiently unpopular, we might see pressure on companies not to hire Zionists, an expanded version of BDS efforts. This outcome could mirror prior hiring bans that targeted Jews, including the purge of alleged communists in Hollywood.⁹³ The danger of that outcome should worry those who would wield punitive job denial against anti-Zionists.

To summarize the argument, ideological employment denial often aims to corrupt targets by inducing them to change or conceal their principled commitments through financial inducements. It also punishes people who have not acted culpably. Even when used to punish and deter culpable behavior, the practice cannot easily be contained for practical and constitutional reasons. Of course, not all ideological employment denial aims to corrupt or punish. In the following two Parts, I consider other employer purposes.

III. Inadvertent Social Pressure and Employer Integrity

Most ideological employment exclusion is unconnected to boycotts or punishment. It occurs at the firm level, is uncoordinated with other employers, and does not aim to change employees’ or prospective employees’ behavior. Instead, firms seeking to protect their interests inadvertently impose social pressure, risking, but not intending, harm to individuals and the public. In this Part, I consider employer efforts to protect their integrity by avoiding complicity and unwanted associations, as well as engaging in employer speech. I defer discussion of the employer’s economic goals to Part IV.

I will argue that exclusion based on non-complicity is usually unreasonable. Non-association and employer speech are legitimate aims. However, for most employers, non-association is not a pressing need, and employers can pursue their speech goals without undermining employee integrity. Employees’ integrity interests and the public’s interest in employee speech, as well as the public’s interest in avoiding polarization, counsel against ideological employment exclusion when employers can pursue their goals in other ways. In some instances, equity also favors employee interests because the burdens of employer exclusion fall on disadvantaged groups and suppress speech needed to defend the interests of subordinated groups.

A. Non-Complicity

Some employers might deny people jobs to avoid complicity. Complicity means materially or symbolically supporting or benefiting from someone else’s allegedly immoral acts. Avoiding complicity is part of living with integrity, much like expressing one’s views. Although people disagree on what constitutes undesirable complicity (and, of course, also disagree about what acts are immoral), living according to one’s values, including one’s views about complicity, is part of living with integrity.⁹⁴ Unlike the corrupting and punitive aims discussed above, avoiding complicity does not aim to disrupt other people’s efforts to live authentically (as a goal or an intended means of pursuing a goal).

Non-complicity is not a typical reason for ideological employment denial. Few employers believe they become complicit by hiring someone whose views or acts they regard as immoral. Because commerce connects everyone with people who spend money on things they think are illicit, most people embrace a constrained interpretation of complicity.⁹⁵

However, employers who believe that paying employees makes them complicit in employees’ speech and actions present a conflict between two integrity interests. If we protect the employer, a potential employee must remain silent or risk unemployment. If we do not, an employer must become complicit or cease employing people. The decision about who to protect depends on which person should accept the setback to protect the other’s integrity. This demands an equitable allocation of opportunities for living authentically.

How should we evaluate this conflict? We might ask who is morally right. Does the employer have a correct view of complicity? Are the employee’s actions immoral? However, the value of living with integrity (for both employer and employee) persists even for people with mistaken views about morality or complicity. Moreover, when we move from discussing moral to legal questions, it seems unlikely that a liberal state should base employment rules on the truth of employees’ or employers’ controversial moral views, or that we should trust the state to make such decisions.⁹⁶

We might be tempted to reject the employer’s view of complicity as unreasonably expansive. Many people think it is implausible that an employer becomes complicit in an employee’s actions merely by employing them, particularly if employment does not advance the employee’s goals beyond providing a salary. However, this view of complicity is no more expansive than the views commonly embraced by consumers who participate in boycotts, such as those who refused to buy sandwiches from Chick-fil-A because its owner donated to charities opposing same-sex marriage.⁹⁷

In a recent article on vendor discrimination, I argued for an approach based on reason-giving. Religious vendors sometimes claim that selling wedding-related goods to same-sex couples makes them complicit in actions the vendors regard as immoral. This creates a dilemma: If the law permits them to discriminate, same-sex couples are denied equal status in commerce. Conversely, if the law disallows discrimination, vendors become complicit or must change their businesses.

Justifications for rules should be acceptable to the people they disadvantage. The vendor offers a justification based on a seemingly reasonable aim—avoiding complicity—that any person should consider valuable and be willing to facilitate. However, this neutral description masks its underlying disdain. The same-sex couple must suffer discrimination because the vendor views actions central to their identity as immoral. Accepting this reason requires customers to treat the vendor’s desire to avoid their supposed sin as reasonable. No one should have to accept as reasonable the perspective that they are sinful, because doing so undermines their dignity. In contrast, when the same-sex couple seeks service from the vendor, they are not trying to express or enact any disdain for the vendor’s religion. I concluded that, in most cases, we should regard the vendor’s effort to live authentically by discriminating as unreasonable, because its justification asks victims to accept others’ disdain for them as a reason for rules that disadvantage them. This is especially unreasonable when vendors have other means of maintaining integrity, such as finding other jobs.⁹⁸

To be clear, my argument did not rely on condemning the vendor’s beliefs as homophobic or immoral. It would be equally disrespectful for a feminist baker not to provide a cake for a fundamentalist wedding because she thinks fundamentalist marriages are oppressive. The disrespect comes from invoking someone’s sinfulness or the evil of their views to justify

denying commercial contact. It does not lie in judging which party has morally correct views.

A comparable argument applies to most cases of complicity-avoiding ideological employment denial. For example, imagine a law firm fires or refuses to hire a lawyer whose social media post said that Palestinian violence was an understandable response to Israeli oppression. The firm believes that employing this lawyer would make it complicit in terrorism or antisemitism. Not hiring the lawyer inhibits her ability to express solidarity with Palestinians and, therefore, to live authentically. The lawyer’s desire to express her views does not rely on disdain for the law firm or its values. However, the law firm’s non-complicity efforts depend on its disdain for the lawyer’s deeply held views. By invoking non-complicity with terrorism or antisemitism, the firm asserts that the lawyer’s values are evil—that is, antisemitic or terrorist-sympathizing. The law firm’s non-complicity justification masks disdain in the same way as a feminist baker who does not want to sell wedding cakes for fundamentalist weddings.⁹⁹ Again, the problem is not that the law firm is wrong to think the lawyer’s position is antisemitic or that the feminist baker is wrong to condemn fundamentalist marriages as oppressive. The problem is expecting someone committed to the other side to accept your moral judgment as a reason to exclude them from commerce.

Of course, employment exclusion differs from vendor discrimination in several ways, including having different material consequences. Being fired or not hired often imposes financial and personal costs far greater than being turned away by a vendor. However, my point concerns the interest in non-complicity, which is similar in both examples. In any case, the more significant material stakes for employees only strengthen the argument for restricting employer action based on non-complicity compared to the vendor argument.

Some scholars argue that we should accept non-complicity as grounds for excluding people from pursuing hateful or oppressive goals.¹⁰⁰ They might forbid most employer exclusion based on ideology but allow employers to deny jobs to racists or antisemites to avoid complicity. However, their position faces problems.¹⁰¹ Like the argument for punishing hate speech, this position has the potential to expand widely. Suppose employers can exclude antisemites based on non-complicity. Can they also exclude abortion supporters or opponents because people with these views favor murder or the oppression of women? What about supporters or opponents of DEI if the employer thinks their views are racist? Many positions on controversial issues can be described as hateful and oppressive. Exempting hateful positions from a general ban on employment exclusion might expand to cover a wide range of political speech.

My prior article concluded that vendors whose consciences preclude them from serving customers should protect their integrity by changing businesses.¹⁰² Their reason for excluding customers is disrespectful, and they have alternative ways to live with integrity. The same applies to employers who object to employing people whose values they reject. They should not employ people if they think employment makes them complicit in their employees’ speech or political acts.

This might seem unreasonably burdensome to employers. However, several considerations support it. First, disrespectful reasons should not be counted when assessing fair opportunities for living with integrity. Second, the position that employing someone makes you complicit in their activities is hard to accommodate. People who hold such views have as much interest as anyone else in living with integrity. But by embracing this view, they make outsized demands on others to help them avoid complicity. The harm they cause is not merely the undermining of one employee’s integrity. They create incentives for all potential employees to hide their views, thereby harming the public by exacerbating censorship and polarization. Unlike the values of speech and non-polarization, non-complicity serves only private ends. There is no public interest in expansive non-complicity views, parallel to the public interest in open discussion and non-polarization. Third, few people hold such broad complicity concerns, and fewer still hold them intensely. The law needs mechanisms to distinguish sincere invocations of a view strongly felt from pretextual and exaggerated versions. One sensible solution to this sorting problem is to ask people to protect their integrity, even at significant cost, rather than imposing costs on others.

B. Employer Non-Association and Speech

Employers might advance several associational interests to justify ideological exclusion. One interest is that they do not want to be near people whose views they dislike. This interest is sometimes a version of non-complicity, relying on the idea that the employer is morally tainted by proximity (discussed above). However, it might not reflect complicity; it might reflect discomfort with being around people with different views or distrust of people with different views.

We should resist exclusion claims based on employer discomfort and distrust. Discomfort often masks disdain and has been a code word to justify discrimination. More broadly, we should combat rather than indulge discomfort and distrust deriving from disagreement. Discomfort and distrust are at the core of affective polarization. The law should encourage people to become comfortable working across political and moral divides and to build trust by working together.

Other associational interests are not urgent for most businesses. They do not resemble intimate associations, in which bonds of affection and admiration are central to the relationship, or private groups devoted to causes or common interests, in which shared purposes are central to achieving the group’s goals. For this reason, courts have not accepted associational interests as pressing for most businesses.¹⁰³

Employers sometimes invoke speech interests to justify excluding employees. They hope that excluding certain workers will communicate their values to employees or potential customers. For example, to show customers and workers that the company embraces equality and diversity, it might refuse to hire workers who reject those values or fail to show adequate commitment to a specific view of equality in a diversity statement. Or, to show support for Israel, the employer might exclude those who protest Israel’s existence.¹⁰⁴

This argument has several problems. The main difficulty is that employers have many ways to signal their commitment to values without undermining others’ integrity or exacerbating social problems. They can state their values directly and demonstrate how those values shape the firm. Excluding those with different values is not necessary to achieve the end. Another problem is that such exclusion may have the effect (or even be a pretext for) objectionable discrimination or corruption. For example, an employer might want to signal its commitment to equal treatment of women by refusing to hire abortion opponents. In doing so, it might discriminate against people based on their religion or pressure potential employees to hide their views.

Although most employers do not need ideological exclusion to protect their speech and associational interests, there are exceptions. These might include organizations dedicated to political, religious, artistic, and moral goals.¹⁰⁵ Religious organizations and those with creative goals already demand the right to discriminate in some contexts.¹⁰⁶ They would likely seek similar exemptions from any law forbidding employer exclusion based on speech. Indeed, Disney tried (unsuccessfully) to defend firing Gina Carano by invoking its speech rights.¹⁰⁷

Exceptions may be warranted for mission-driven organizations, such as political groups or charities. Non-profits and political organizations may need employees who share their aims. Some for-profit employers have similar needs. For example, specialist law firms, such as labor-side employment firms, may screen for lawyers who favor their preferred clients.

The appropriate scope of such exemptions is complex. However, such exceptions must be narrowly drawn to prevent expansive or pretextual use that undermines the benefits of laws restricting ideological employment exclusion.

To summarize this Part, employers seeking to avoid complicity with employees’ views and actions should stop employing people if doing so compromises their consciences. Asking others to accept an employer’s disdain for their deeply held commitments does not rely on reasons the disadvantaged party can accept. We should reject employers’ discomfort as a justification for denying jobs and instead encourage people to become comfortable working together despite moral and political divides. Moreover, other associational interests are not pressing for most employers, and employers can advance their speech interests without ideological employment denial. That said, there are exceptions to these conclusions. Mission-driven employers, for instance, should be allowed to deny employment in narrow circumstances to protect their speech and associational interests.

IV. Inadvertent Social Pressure and Employer Economic Interests

Some employers use ideological exclusions for economic reasons. In most cases, however, employers can achieve their economic goals without undermining employee integrity, chilling speech, or exacerbating polarization. Below, I illustrate this conclusion using three economic interests: customer and employee retention, workplace efficiency, and merit.

A. Customer and Employee Retention

Businesses worry about their reputations. Employers may prefer to exclude employees with unpopular views because they do not want others to think the employer shares those views or to associate those views with their businesses. Such associations could lead to lost customers or difficulty recruiting and retaining employees.

However, this attribution argument is usually unpersuasive. For low-level employees, especially in large companies, few observers will know their views, and fewer still will assume that an employer shares them. In part, this is endogenous (that is, the inference drawn will depend on the background rule). If the law forbids ideological hiring and firing (and people know about the law), observers will be less likely to presume that an employer shares their employees’ views. Conversely, if ideological hiring is permitted and becomes typical, observers will have more reason to assume that an employer shares an employee’s views. That said, for smaller firms or high-level employees, the non-attribution interest may be weightier.

A related concern is when employees, particularly celebrities, are part of the product sold. Customers might not care about the employer’s views, but they may be so displeased by the employee’s statements that they look elsewhere for goods and services. Although this concern is legitimate, the Netrebko example highlights the dangers of protecting it. Perhaps the Metropolitan Opera fired Netrebko because it feared losing ticket sales or donations. However, unless the law requires evidence of lost income, this justification can easily mask employer dismissals based on punishment, corruption, discomfort, or non-complicity. Indeed, opera fans continue to

patronize venues that hire Netrebko,¹⁰⁸ suggesting the Metropolitan Opera’s fears may have been unfounded.

B. Workplace Efficiency

Employers may worry that employees will be uncomfortable around coworkers with unpopular views. This might lead to workplace inefficiencies or difficulty recruiting and retaining employees.

One might be tempted to dismiss this claim by pointing to studies showing the benefits of workplace diversity. However, these studies are equivocal, suggesting both benefits to creativity and drawbacks to efficiency.¹⁰⁹ If hiring employees with unpopular views leads to workplace disputes and distrust, the efficiency costs might outweigh the creativity benefits of viewpoint diversity. Moreover, employers can achieve substantial viewpoint diversity (and thus creativity) while excluding people with extreme views.

Indeed, one scholar argues that we should allow employers to discriminate based on ideology to protect workers from the harms of political polarization. According to R. George Wright, polarization and pressure to take stands on public controversies have politicized our workplaces to the detriment of worker comfort and efficiency.¹¹⁰ Although Wright acknowledges that banning ideological exclusion might support a social consensus that workplaces are depoliticized spaces—as I urge—he notes that this optimistic forecast lacks solid empirical support.¹¹¹

Wright’s skepticism is fair. My suggestion that we use workplace integration to fortify society against polarization might not work. However, reducing polarization is too important to allow the metastasis of political isolation and disdain. Even if we cannot guarantee success, we should pursue strategies to encourage integration and combat polarization.

Concerns about workplace instability stemming from political opponents working together can be addressed through alternative means. People who disagree about politics and religion have successfully shared workplaces. Managers can support such cooperation by limiting political discussions in the workplace,¹¹² modeling respectful interaction, and avoiding corporate stances on political matters that show disdain for those who disagree.¹¹³ Despite limits on political discussions, coworkers will likely learn that others hold vastly different views and may recognize that their disagreements do not impede cooperation.

Employers might seek to exclude employees or potential employees if they believe their speech outside the workplace signals a higher risk of harmful workplace behavior, such as workplace harassment. For example, chanting “from the river to the sea” in a campus protest might be protected speech, assuming it did not target Jewish students for harassment, but chanting it at a Jewish coworker during working hours could be illegal harassment.

Yet employers need not screen employees’ speech outside the workplace to prevent harassment. Absent other information about an employee, there is little reason to assume that employees will behave in the workplace as they do online or in political protests, or that they will not follow workplace rules.¹¹⁴

C. Merit

Employers might prefer employees who do not use intemperate language or express extreme or reductionist views. Such employees might be more cooperative workers or more subtle, better-informed thinkers. In this regard, screening for employee speech resembles testing for personality, knowledge, or intelligence.¹¹⁵

However, employers can assess these qualities without examining employee speech. They can instead rely on personality tests, competence tests, grades, and references.¹¹⁶ These alternatives would not undermine employee integrity, chill speech, or exacerbate polarization. There are concerns that employees may lie on personality tests to secure jobs.¹¹⁷ Even so, there is inadequate evidence to suggest that social media screening is superior to personality tests in predicting employee quality, although, admittedly, social media screening might be less costly.¹¹⁸

Employers might respond that no single metric predicts employee success equally well for all workplaces. In the absence of settled science, they should be permitted to use the screening tools that seem most suitable to them. This argument has some appeal, because employers are right when they say it is hard to predict employee quality. However, it also has the potential to be abused. Employers might cite intemperate language as a pretext (or be unconsciously biased) and exclude views they dislike by labeling them intemperate or reductionist.

That said, some controversial employee speech may justify merit-based exclusion if it reveals a candidate to be unqualified for specific jobs. Job candidates who deny established scientific consensus may be unqualified for jobs that require scientific or policy expertise. Those who embrace conspiracy theories despite contrary evidence may be unqualified for jobs as journalists or educators. However, even this exception needs to be narrowly interpreted. Science denialists or conspiracy theory enthusiasts should not be disqualified for jobs unlikely to require scientific abilities or knowledge of public affairs.

Employee speech can sometimes render an employee unfit for their job. The speech might undermine the employee’s ability to accomplish core job functions. Examples include teachers who make public remarks that demean their students, thereby undermining the trust needed between students and teachers, or police officers whose remarks demean the citizens they serve.¹¹⁹

To summarize, most employers’ economic concerns can be addressed without ideological job denial. Employee speech will rarely be attributed to employers or undermine their profits. There are some exceptions, such as celebrities and corporate leaders, who are integral to their employers’ brands. However, permitting job denial in these cases must be approached with caution lest business reasons be used as pretexts for other goals. Workplace unrest stemming from varied employee views can be addressed through effective management. Finally, screening employee speech is unlikely to be the only, or even the best, way to ensure employee quality. Other indicia of merit can be used without chilling speech and fostering polarization.

V. Final Reflections

A. Do We Need Legal Regulation?

We create social pressure through speech, association, and spending. We criticize, boycott, shame, and shun one another while pursuing aims central to our lives. However, these tools can be misused to suppress speech and diversity, undermine efforts to live according to one’s values, and exacerbate polarization. I have argued that most ideological employment exclusion falls into the second category: employers abuse social pressure either to pursue illicit ends or to achieve reasonable goals that could be achieved in alternative ways.

Sometimes, when people misuse social pressure, the best solution is counterpressure; we criticize, boycott, shame, and shun those who abuse these social tools. However, in other cases, legal regulation of social pressure is more sensible, such as when social pressure is used against the powerless, when mobs employ social pressure, or when pressure and counterpressure threaten to become a vicious cycle of revenge.

Legal tools are difficult to implement when people use social pressure for both valuable and illicit ends that are hard to distinguish.¹²⁰ However, if my arguments are correct, employment exclusion is rarely needed to pursue legitimate ends. Additionally, polarization and the targeting of unpopular views suggest that social counterpressure and self-restraint will fail as solutions. Thus, a regulatory solution likely makes sense.¹²¹ Legal rules governing social pressure can mitigate some of its downsides, helping to focus that pressure on cases where it causes less harm.

Admittedly, legal rules alone cannot prevent ideological employment denial. We must also build a social consensus against ideological job denial and in favor of free speech and cooperation across ideological lines. Employment laws are notoriously difficult to enforce, especially when

applied to hiring. Nevertheless, employment laws can provide occasional remedies and help shape this social consensus over time.

B. Moral Uses of Social Pressure

This Article began by asking what uses of social pressure are morally permissible and whether we can resolve Mill’s concern that social pressure might serve valuable ends while also censoring ideas, undermining integrity, and inducing unnecessary conformity. The tension Mill identified cannot be eliminated; social pressure, which is often a byproduct of rightly protected activities, sometimes threatens other people’s freedom. However, we can mitigate concerns about censorship, integrity, and conformity by protecting valuable uses of social pressure that cannot be pursued without risk to others and by discouraging uses in two kinds of cases: when social pressure is used for illicit ends and when it is used for legitimate goals that can be pursued in less harmful ways. Such social restraint requires institutions that fairly allocate opportunities for living authentically. They might help us avoid social pressure that needlessly curtails public debate and exacerbates polarization. They can also be alert to the possibility that social pressure will be used against people with limited power, inequitably allocating opportunities for integrity and suppressing speech necessary for emancipatory social movements.

Identifying legitimate uses of social pressure is easier when we recognize that it falls into several categories. One category of social pressure arises from its intentional use to change other people’s behavior. This pressure is permissible if it is not pursued to corrupt others or unjustly punish them. For example, we can try to change others’ behavior when they act carelessly or out of self-interest. We can shame ill-mannered strangers and shirking friends, or boycott companies that pay their workers too little. Such efforts do not corrupt their targets because the targets do not aim to exclude financial gain or personal reputation from their decisions. However, intentionally using social pressure becomes problematic when it disrespects targets by offering financial incentives to violate moral commitments, such as boycotting a merchant to deter it from donating to a charity or refusing to hire college students to deter their political speech.

Social pressure is also problematic when used to punish speech. Social penalties are often directed against those whose values we dislike, people whose speech is ambiguous, or those who offend us but have done no wrong. Even when we penalize wrongful speech, such as hate speech, we risk its further use in less straightforward cases, punishing the innocent and exacerbating tensions over culture war issues. In our pluralistic and increasingly polarized society, social penalties for speech should be avoided unless we find ways to restrict them to clearly culpable speech.

A second category of social pressure that undermines integrity arises as an unintended effect of actions taken while pursuing other, often valuable, goals. The reasons for imposing unintended social pressure can be central to the integrity of the person imposing that pressure and cannot be pursued otherwise. An example is refusing to befriend someone whose values I abhor. Friendship requires affection and admiration. So, the good of friendship cannot be pursued without risking the integrity of excluded people.

However, social pressure is inappropriate when the goals pursued are illicit and when we do not fairly distribute opportunities for living authentically. Sometimes, the interest pursued when imposing such risks is illicit. I argued that we should treat non-complicity as an illicit reason for employment denial. This is partly because it disrespectfully relies on reasons that undermine self-respect and partly because employers can avoid complicity without discriminating. Even when employers have good reasons for ideological exclusion, such as protecting speech and associational interests or advancing economic goals like profit and employee retention, most employers can adequately advance those goals through other means. We should insist they use those means because ideological job denial threatens to chill speech and exacerbate polarization. Moreover, because jobs are central to thriving in our society, social pressure created through job denial is often difficult to resist.

These ideas do not solve all the difficulties raised by Mill’s puzzle (and might not appeal to Mill). But they suggest some solutions.

C. Revisiting the Examples

The paper began with examples: job denials based on speech about Zionism, sex, and gender; the refusal to condemn Vladimir Putin; political comments about Trump and Charlie Kirk; membership in a racist political party; and perceived affiliation with the Communist Party. I asked what was wrong with these exclusions and whether they differed from doxing and shaming sexual harassers during the #MeToo era.

Boycotting anti-Zionist students is corrupting, seeking to entice them to abandon their principles for money. It also seeks to punish people who might not be wrongdoers. Even if you think they are wrongdoers, the boycott embraces norms that might spread to punish non-culpable people and undermine cooperation. Similar arguments condemn the firing of Gina Carano, Anna Netrebko, the British National Party employee, and those who celebrated Charlie Kirk’s death or criticized him after he was killed.

The #MeToo movement was different. Sexual harassers deserve to be punished, and legal rules specifying what constitutes harassment help limit the punishment to wrongful harassers. Moreover, because sexual harassment likely does not represent the deeply held views of harassers, it does not threaten integrity, speech, or polarization in the same way as ideological employment exclusion.

The arguments marshaled against these examples do not apply to employers who have good reasons for ideological employment denial that cannot be pursued in other ways. Organizations devoted to specific missions are the most obvious.

D. But What About the Nazis?

Some readers might think we should generally disallow ideological employment denial, but we should allow employers to exclude people who express hatred toward groups based on race, religion, and sex. They might contend that all my arguments lose force when applied to people who express hate. Such individuals do not deserve respect, so we do not owe them restraint from corrupt pressures or protection from insulting demands for non-complicity. They deserve punishment, so we should feel free to harm them through job denial for their culpable speech. Their presence in the workplace will likely undermine efforts to foster respect and cooperation through workplace integration. They will likely tarnish employer reputations and mistreat coworkers, which provides employers with sound moral and business reasons to exclude them.

This position, embraced in much of Europe, has evident attractions. However, we should resist it for several reasons, especially in the U.S. First, I disagree with the claim that we can withhold respectful cooperation from people with unreasonable views. We need not offer them reasons they can accept if they are unwilling to seek reasonable terms of cooperation. However, we must still respect their rights and cooperate with them on terms a reasonable person can accept.¹²² We fail to respect their rights and cooperate if we try to corrupt them or demand that they accept denigrating reasons for our actions.

Second, as noted above, we should not trust employers or the government to pick which views are so heinous that we will punish their expression through employment discrimination. The likely targets will not just be Nazis (and might not even include them). If progressives are in power, those punished might include people who oppose abortion rights or same-sex marriage or who embrace traditional roles for women. If the right is in power, targets might include people who favor abortion rights, gender-affirming care for transgender children, or anything related to DEI. If power is divided, we may see a patchwork of protections in red and blue states, creating even more incentives for residential segregation by ideology, mutual distrust, and social pressure used as a tool for retaliation. Moreover, it is unclear whether punishing purveyors of hate is the most effective way to combat its spread. It might merely fuel such movements’ feelings of isolation and persecution.

Third, as noted earlier, a law banning employment exclusion based on ideology for everyone except Nazis (or hate speech, or harmful speech, however defined) would likely be unconstitutional in the U.S. If so, we must choose between offering no protection against ideological employment denial and offering protection that extends to Nazis. Vulnerable people who hold views that we should respect far outnumber people with hate-based views. We should protect them even at the cost of helping a few Nazis.

Finally, people can work cooperatively even knowing that some of their coworkers hold views that express contempt for their values. We work with people whose religious views include predicting our eternal damnation, who believe our attitudes toward abortion condone murder or oppression, who think our views about merit show us to be racists, and who think we recently voted for a tyrant. Justices Scalia and Ginsburg worked together and formed a friendship, even though his religion might have characterized her as having spent a career supporting the murder of babies. At the same time, her feminist commitments might have portrayed him as devoted to ideals that oppress women. We should not presume that some subset of people with views we find most hateful will misbehave or undermine efforts at peaceful coexistence, or that we cannot find ways to coexist in proximity. Rather than assume cooperation is impossible, we should try working together.

99 S. Cal. L. Rev. 1

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Scott Altman*

*Virginia S. & Fred H. Bice Professor of Law, University of Southern California Gould School of Law. For helpful comments, I thank Catherine Fisk, Felipe Jimenez, Greg Keating, Dan Klerman, George Letsas, Erin Miller, Alain Pottage, Marcela Prieto, Daria Roithmayr, Irit Samet, Mike Selmi, Amy Sepinwall, Mike Simkovic, Danny Sokol, Raphaële Xenidis, and participants at the Sciences Po Law School Faculty Colloquium.

INTRODUCTION

I. THE ARRIVAL OF KIDFLUENCERS

A. A Brief History of Stage Mothers

B. Reality Television Bridges the Gap from Film and Television to the Internet

II. REGULATING THE LABOR OF KIDFLUENCERS

A. Existing Labor Regulations for Child Entertainers

1. Federal Measures for Child Workers: The Fair Labor Standards Act

2. SAG-AFTRA, States’ Approaches & the Coogan Law

3. When Does the Home Become a Set?

B. New Efforts: Expanding Child Labor Regulations to Cover Kidfluencers

A. Privacy Regulations for Children as Users Online

Existing and Proposed Federal Regulations for Children Online

i. The Children’s Online Privacy Protection Act of 1998

ii. COPPA 2.0

2. Online Platforms’ User Age Restrictions

B. Relevance and Current Limitations of the Common Law Rights of Privacy and Publicity

C. Falling Through the Gaps: Protecting Kidfluencers’ Privacy

1. Kidfluencing’s Unique Threat to Privacy

2. Adapting COPPA 2.0 and the Necessity of a Right to Removal

IV. THE SOLUTION—FEDERAL LABOR AND PRIVACY PROTECTIONS AND REQUIRING SOCIAL-MEDIA PLATFORMS TO ENFORCE KIDFLUENCER RIGHTS

A. Section 230 and Techlash

B. Contributory Liability as a Basis for Platform Enforcement

CONCLUSION

99 S. Cal. L. Rev. 449

INTRODUCTION

I. The Harm of Ideological Employment Denial

A. Four Traditional Approaches

B. Threats to Personal Integrity

C. Two Public Harms: Affective Polarization and Censorship

D. Summing Up

II. Intending to Change Behavior through Social Pressure

A. Corrupting Aims

B. Punitive Aims

III. Inadvertent Social Pressure and Employer Integrity

A. Non-Complicity

B. Employer Non-Association and Speech

IV. Inadvertent Social Pressure and Employer Economic Interests

A. Customer and Employee Retention

B. Workplace Efficiency

C. Merit

V. Final Reflections

A. Do We Need Legal Regulation?

B. Moral Uses of Social Pressure

C. Revisiting the Examples

D. But What About the Nazis?

99 S. Cal. L. Rev. 1

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