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Utah changed its social media laws to avoid constitutional issues, but legal challenges persist

By Kyle Dunphey - Utah News Dispatch | Jun 13, 2024

Spenser Heaps, Utah News Dispatch

The Capitol in Salt Lake City is pictured on Monday, May 6, 2024.

Despite attempts from lawmakers to amend Utah's novel social media restrictions aimed at curbing teen use, the state is still facing legal challenges arguing the laws are unconstitutional.

Last week, the free speech group FIRE -- short for the Foundation for Individual Rights and Expression -- submitted an amended complaint in its lawsuit filed in federal court in January, arguing that the changes made during the legislative session are "equally, and in some respects, more problematic."

And in early May, the group NetChoice, which represents a number of big tech companies including Meta, Google and Amazon, submitted a similar amended complaint to its lawsuit filed in federal court in December.

In its new complaint, NetChoice claims the restrictions violate the First and 14th amendments -- FIRE's new complaint makes a similar argument, taking it a step further in claiming the laws violate the Commerce Clause.

The social media regulations are "based on the erroneous premise that the state has 'free-floating power to restrict the ideas to which children may be exposed' -- a concept the Supreme Court has flatly rejected," the FIRE complaint argues.

By imposing a state regulation over a "global medium"; forcing companies to redesign their services; limiting information and resources that users can access; imposing "preconditions" on accessing protected speech; restricting adults' access to protected speech; forcing users to "sacrifice anonymity to exercise their First Amendment rights"; and creating "vague" and "overbroad" restrictions, the state has run afoul of the First and 14th amendments, FIRE argues.

It also violates the Commerce Clause, FIRE alleges, because it places an "unreasonable" burden on "channels of interstate commerce" -- basically, the complaint claims Utah is impeding the flow of information and online services across state lines.

"A state cannot block internet content from its own citizens without affecting citizens of other states," the lawsuit argues.

Utah Sen. Mike McKell, R-Spanish Fork, is not surprised that the state is still facing a legal challenge. McKell sponsored SB194, the law in question, and on Friday told Utah News Dispatch that the arguments in the complaints are "disingenuous."

"Kids can still get on social media. But what we're doing in the legislation is getting rid of the addictive features. And those addictive features are not necessary for a good experience on social media," he said. "Does it surprise me that they're litigating? Not at all. I think it's disingenuous to do that and cite the constitution and the First Amendment. This is about money entirely, and it's a problem they're aware of and a problem they can fix."

In 2023, the Utah Legislature, with strong support from Gov. Spencer Cox, passed some of the country's first and most restrictive laws regulating how minors interact with social media. Those regulations were challenged in court by FIRE and NetChoice and ultimately scrapped during the 2024 legislative session, with lawmakers replacing them with new laws intended to pass constitutional muster.

"We always expected a revision of the legislation," McKell said.

SB194 places restrictions on minors using social media while allowing parents or guardians to engage with their children's accounts.

Under the law, which is set to take effect Oct. 1, social media companies are required to verify the age of all users. Unless parents or guardians say otherwise, the following restrictions are imposed on accounts belonging to minors:

  • Features where tech companies collect and store data to facilitate quicker search results are disabled.
  • Default privacy settings that would only allow direct messaging, visibility and sharing features for the user's "friends" (a parent or guardian can override these settings).
  • Features that contribute to "excessive use" like autoplay, push notifications and perpetual scrolling are disabled.
  • Companies are prevented from collecting and selling data.

"If you're going to collect minor's data, you've got to have parental consent. I think that's very reasonable," said McKell.

A key difference between the 2023 law and the 2024 law are the "legislative findings" about the mental health impacts of social media, which argue the state has a "compelling interest" to act.

But in the new complaint, FIRE takes issue with just about every aspect of the bill, including the age verification requirement, content and messaging restrictions and parental consent.

"Like its predecessor, the Act purports to aid parental authority, but substitutes that

authority with 'what the State thinks parents ought to want,'" reads the complaint, accusing Utah of imposing a "vague and overbroad content-based speech restriction, none of which survives constitutional scrutiny."

FIRE's lawsuit lists several plaintiffs --  Hannah Zoulek, a queer-identifying high school student; Val Snow, an LGBTQ YouTuber who makes videos about cooking and mental health; Lu Ann Cooper and Jessica Christensen, online activists who escaped a polygamous community and now provide resources to people in similar situations; Cooper's teenage daughter; and Utah Youth Environmental Solutions, a youth-led environmental advocacy program.

All the plaintiffs argue the law will chill free speech and their ability to reach their digital communities. According to the complaint, they "know how minors' access to social networks can be literally lifesaving and are concerned that the Legislature chose to throw out the baby with the bathwater."

FIRE's complaint echoes the arguments made by NetChoice, which claims the new social media law "suffers from many of the same constitutional flaws as the prior law" by restricting access to protected speech.

"Plus, it introduces new flaws," the complaint reads, "such as regulating who minors can speak with absent parental consent. All of these requirements are backed by large, speech-chilling penalties. As a result, the replacement Act, like its predecessor, joins a long list of unconstitutional state attempts to regulate speech to prevent perceived social harms to minors."

Both groups are asking the court to rule that Utah's social media laws are unlawful and void.

The way McKell sees it, those arguments are so disingenuous that he would advise against lawmakers in other states working with companies like Meta or TikTok, who he says gives money to trade organizations that then fight the restrictions in court.

"I don't know why lawmakers still need to engage with tech companies in good faith because to be clear, the tech companies are not engaging in good faith," he said. "Lawmakers ask me, should I work with Meta? No. Because Meta is going to sue you after you felt like you were working on the issue in good faith."

McKell said the law is still slated to take effect in October, although he acknowledged a judge could issue a stay, effectively pausing the law while the process plays out in the court.

A spokesperson for the Utah Attorney General's Office declined to comment on pending litigation.

Utah News Dispatch is a nonprofit, nonpartisan news source covering government, policy and the issues most impacting the lives of Utahns.

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