Utah Finally Sued Over Its Obviously Unconstitutional Social Media ‘But Think Of The Kids!’ Law
Last year, we wrote a bunch about how the Utah legislature was rushing through a bill to destroy the internet by claiming they were doing it for the children." There were all sorts of obvious problems with the bill, and even though it was clearly unconstitutional, Utah Governor Spencer Cox not only signed it, but literally dared people to sue the state over the bill (somewhat ridiculously, he made sure to stream the signing of the bill on all of the websites he was looking to hinder with the bill).
And then... nothing. Oddly, while many of us expected a lawsuit, none appeared. Lawsuits had been filed to block other laws, such as those in Texas, Florida, California, Arkansas, New York, and more... but nothing about the Utah bill, which was one of the most high profile. A few months ago I even started a blog post asking why no one had sued Utah yet, but never got around to finishing it. A few weeks back there was a report that once Utah's legislature goes back into session in early 2024, that the sponsor of the bill, state Senator Mike McKell, would be offering amendments to the law, because he knows it's unconstitutional, and he was trying to inoculate" the bill from the inevitable lawsuit.
And, then, finally, last week NetChoice (which has filed many of the other challenges to state bills) announced that it had finally sued Utah over the bill.
Our company, NetChoice, is dedicated to protecting American values online. Today, we are suing the state of Utah to stop this package from going into effect in March. We have already won successful challenges against California and Arkansas for trying to impose similar restrictions.
It doesn't have to be this way. NetChoice has been repeatedlyspeaking with Utahlawmakers about these problems since the two laws, SB 152 and HB 311, were introduced in the legislature. States like Florida and Virginia have passed bills that embrace a positive approach for digital literacy. Unfortunately, Utah's government took a path that seizes control of the online experience from parents, disregards the importance of education, sidelines the state's vibrant creator economy, compromises data security and violates constitutional rights.
NetChoice believes that families equipped with educational resources are capable of determining the best approach to online services and privacy protections for themselves. With NetChoice v. Reyes, we are fighting to ensure that all Utahns can embrace digital tools without the forceful clutch of government control," said Chris Marchese, Director of the NetChoice Litigation Center. Now that these tools are prominent in our lives and important for our economy, young people should learn how to harness their power while developing healthy and safe habits."
The complaint is worth reading. It lays out in pretty clear ways how obviously unconstitutional the bill is:
At the outset, the entire Act violates the First Amendment and the Due Process Clause because it depends on a vague and content-, speaker-, and viewpoint-based definition of a regulated social media company." 13-63-101(9). Through a series of vague definitions and exceptions with arbitrary thresholds, the Act singles out some Internet websites for regulatory burdens based on, among other things, the content they disseminate. The same speech may be heavily regulated-or not regulated at all-based on who is speaking, what is being said, and what website it is being said on. For instance, YouTube must comply with the Act's burdensome requirements. But Netflix is exempted, under at least three exceptions: (1) as a streaming service"; (2) as a service where the predominant or exclusive function is . . . entertainment"; and (3) as a service that does not allow users to upload posts." 13-63-101(10)(a)(ii), (b)(i)(C), (b)(i)(D). As another example, X (formerly known as Twitter), Bluesky, Gab, and Truth Social all allow users to discuss the issues of the day and share similar content. But while X must comply with the Act, Bluesky, Gab, and Truth Social are exempted under the law's arbitrary 5-million account threshold. 13- 63-101(9)(a). Nextdoor appears to be covered by the Act, but if it restricted its community's discussions to public safety," it would not be. 13-63-101(10)(b)(i)(I). Minors must secure parental consent (and adults and minors would need to verify their ages) to engage in interactive gaming" on Facebook, but not on websites like Roblox where the predominant or exclusive function is . . . interactive gaming." 13-63-101(10)(b)(i)(F). Anyone searching for a new job on a covered website must jump through similar age-verification hurdles (and minors must secure parental consent), but not on websites providing career development opportunities." 13-63-101(10)(b)(i)(J). These are just some of the nonsensical consequences of the Act's multiple content-, speaker-, and viewpoint-based distinctions. Those distinctions all give rise to strict scrutiny, which the Act cannot satisfy. That alone is a sufficient basis to enjoin Defendants from enforcing the Act.
Other issues with the bill, like those in other states, is the effective requirement to age verify all visitors, which multiple courts have noted is, by itself, a clear 1st Amendment violation (not to mention a privacy problem). Also, its prohibition on showing personalized" content to kids is ridiculous on multiple levels, including that if you can't personalize content to kids, then... um... how do you remove content that is inappropriate for children from their feeds?
There's a lot more in there as well. The Utah bill is so over-the-top obviously unconstitutional that I'm still confused as to why it took this long to sue. I had assumed the lawsuit would come pretty fast, though the fact that the bill wasn't even set to go into effect until March of 2024 may have made it seem not as urgent. I heard a few rumors that not all of the big tech companies wanted to fight the bill, and some were willing to go along with Utah's law because they know they can handle it while others cannot (take a guess where I got that idea from...). But, thankfully, NetChoice has finally stepped up to challenge this law.
There are so many bad ideas in this legislation that this is an important challenge and one worth following closely. While much of the case revolves around the 1st Amendment, there is also an important bit about Section 230 pre-emption in there. As you'll recall, Section 230 pre-empts state laws from putting liability on interactive computer services for third party speech because, that would lead to an impossible situation for websites. But the states keep ignoring this with these laws, and this case calls that out:
Section 230 provides that [n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." 47 U.S.C. 230(c)(1). Section 230 preempts inconsistent" state laws. Id. 230(e)(3). The Tenth Circuit has held that 230 forbids the imposition of publisher liability on a service provider for the exercise of its editorial . . . functions." Ben Ezra, 206 F.3d at 986 (citation omitted).
Covered member websites are interactive computer services" and disseminate information provided by another information content provider." 47 U.S.C. 230(c)(1), (f)(2). Indeed, the prototypical service qualifying for this statutory immunity is an online messaging board . . . on which Internet subscribers post comments and respond to comments posted by others." FTC v. Accusearch Inc., 570 F.3d 1187, 1195 (10th Cir. 2009).
Advertisements on these websites can be created and posted on the websites by third parties, including both third-party advertisers and users of the websites who may use or include advertising" in their user-generated content. In some cases, this may be as simple as a creator mentioning a new movie or book in a piece of user-generated content. In all such cases, such advertisements are information provided by another information content provider." 47 U.S.C. 230(c)(1).
Section 230 protects websites' decisions to publish (or not to publish) third-party advertisements-whether those ads are paid content placements or user-generated content. It would be inconsistent" with Section 230(c)(1), id. 230(e)(3), to impose liability on websites for display[ing]" third-party advertisements to minors, 13-63-103; see, e.g., Calise v. Meta Platforms, Inc., 2022 WL 1240860, at *3 (N.D. Cal. Apr. 27, 2022). Moreover, Section 230 preemptsrequirements to proactively monitor third-party content." HomeAway.com, Inc. v. City of Santa Monica, 918 F.3d 676, 682 (9th Cir. 2019); Airbnb, Inc. v. City of Boston, 386 F. Supp. 3d 113, 123 n.11 (D. Mass. 2019) (similar). Such requirements would unlawfully treat[]" websites as the publisher or speaker of . . . information provided by another information content provider." 47 U.S.C. 230(c)(1).
Hopefully, the court in Utah recognizes the problems of this law the way courts in (most) other states have also called out these unconstitutional laws.
Meanwhile, NetChoice moved almost immediately for a preliminary injunction blocking the law from going into effect. As the motion makes clear, moral panics happen with all sorts of new media, and that doesn't make it okay to limit access to those new forms of communication:
New mediums of expression continually emerge, evolve, and reinvent the ways that we speak and engage. Yet governments too often try to regulate those new mediums, fearing that widespread adoption may be harmful. A common refrain among lawmakers is that the nature of a new technology requires limiting minors' access to the protected speech, ideas, and content available via these mediums because new channels of expression may endanger or harm our youth
The Supreme Court has consistently rejected State control of the mediums minors use to access speech-such as dime novels," [r]adio dramas," movies," comic books," television," music lyrics," or video games"-as contrary to the First Amendment. Brown v. Ent. Merchs. Ass'n, 564 U.S. 786, 797-98 (2011). Moreover, the Supreme Court has made clear that minors are entitled to a significant measure of First Amendment protection" and that the State lacks a free floating power to restrict the ideas to which children may be exposed." Id. at 794 (cleaned up). Those protections apply with particular force when laws impeding minors' access to speech may also affect adults' access to speech. See Ashcroft v. ACLU, 542 U.S. 656, 667 (2004); Reno v. ACLU, 521 U.S. 844, 882 (1997); NetChoice, LLC v. Bonta, 2023 WL 6135551, at 13 (N.D. Cal. Sept. 18, 2023); NetChoice, LLC v. Griffin, 2023 WL 5660155, at 21 (W.D. Ark. Aug. 31, 2023).
The Utah Social Media Regulation Act should likewise be rejected as an unconstitutional attempt to regulate minors' ability to access, speak, hear, share, and otherwise engage in protected speech. Social media websites allow minors and adults alike to engage in a wide array of protected First Amendment activity on topics as diverse as human thought." Griffin, 2023 WL 5660155, at *5 (cleaned up). 1 Yet the Act requires a content-, viewpoint-, and speaker-based subset of covered websites to, among other things: verify all users' ages, obtain parental consent before allowing minors to hold accounts, obtain information about minors' and parents' identities, and block minors' access to these websites during a 10:30 p.m. to 6:30 a.m. curfew. 13-63-102, -105. 2 But the Act exempts dozens of categories of comparable websites that disseminate the same or similar speech. The Act's bans and restrictions also impede adults' ability to access and engage in protected speech on covered websites. Decades of First Amendment precedent prohibit all of this.
Hopefully this will be quickly granted - the looming March deadline when the law goes into effect creates some element of time pressure - but like all these laws, I assume there will be a long appeals process as well.