NetChoice Sues to Block Utah Social Media Law From Being Enforced March 1

The Utah Social Media Regulation Act is “an unconstitutional attempt to regulate both minors’ and adults’ access to -- and ability to engage in -- protected expression,” said NetChoice Monday (docket 2:23-cv-00911) in U.S. District Court for Utah in Salt Lake City, seeking to block the state from enforcing the law when it takes effect March 1.

NetChoice is suing for an injunction against Utah Attorney General Sean Reyes and Katherine Hass, the Utah Commerce Department's consumer protection director, to stop SB-152 and HB-311, combined into the Social Media Regulation Act, from being enforced when it takes effect, while the case, NetChoice v. Reyes. “moves through the legal system.”

The Social Media Regulation Act requires social media companies to verify the age of a Utah adult seeking to maintain or open a social media account; get the consent of a parent or guardian for Utah users under 18; allow parents or guardians full access to their child’s account; create a default curfew setting that blocks overnight access to minor accounts of 10:30 p.m.-6:30 a.m., adjustable by parents; “protect minor accounts from unapproved direct messaging”; and block minor accounts from search results. Under the law, social media companies can’t collect minors’ data, target their accounts for advertising or target the accounts with “addictive designs or features.”

The Utah legislature and Gov. Spencer Cox (R) addressed the issue of online safety, and while their effort was “well-intentioned,” NetChoice said, “the path they chose violates the constitutional rights of all Utahns, their children and their businesses, compromises their data security and strips away their parental rights.”

Websites that the law covers allows minors and adults to “engage in a wide array of ... activity on topics ‘as diverse as human thought’” -- all ‘protected by the First Amendment’ from government interference," the complaint said, citing Packingham v. North Carolina. The act would place “multiple restrictions on minors’ and adults’ ability to access” websites where they can “listen, learn, and speak about politics, religion, employment, self-improvement, and nearly any subject that strikes their fancy,” it said. The websites allow people to “bridge language, culture, and geography, making the world a slightly smaller and significantly more connected place,” it said.

The act would “fundamentally change that” by placing “multiple restrictions” on minors’ and adults’ ability to access certain websites, the complaint said. In some cases, the act “blocks access altogether,” it said. It restricts “who can express themselves, what can be said, and when and how speech on covered websites can occur, down to the very hours of the day minors can use covered websites,” it said. The act treats “all minors the same, ignoring the differences between the websites’ youngest users and 17-year-olds,” and it ignores tools parents can use to “shape” their kids’ online experiences, it said.

The act’s scope and effects “turn on sweeping, undefined, and fatally vague terms,” the complaint said. That leaves websites “uncertain about whether they are covered” by the act and what its provisions would require of them, it said. Some provisions fall under protections Congress enacted for all internet websites in Section 230, where it “broadly protected websites from liability based on Internet websites’ ‘exercise of ... editorial ... functions,’” it said.

Utah’s social media law is one of several around the country attempting to impose restrictions on social media platforms’ content. NetChoice has won successful challenges to ones in California and Arkansas for trying to impose similar restrictions, said the lobbying group, which represents trade associations and e-commerce businesses. It highlighted bills that passed in 2023 in Florida and Virginia “that embrace a positive approach for digital literacy.”

The Utah act violates the First Amendment and the due process clause by depending on a “vague and content-, speaker-, and viewpoint-based definition of a regulated 'social media company,'” the complaint said. It singles out some internet sites for regulatory burdens based on the content they disseminate, it said. “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,” it said. YouTube has to comply with the act’s “burdensome requirements,” but Netflix is exempted because it’s a streaming service, its predominant function is “entertainment” and it doesn’t allow users to upload posts, the complaint said.

X must comply with the act, but Bluesky, Gab and Truth Social are exempted under the law’s arbitrary “5-million account threshold,” the complaint said. Nextdoor “appears” to be covered by the act, but if it restricted its community discussions to “public safety,” it would not be, the complaint said. Minors must secure parental consent -- and minors and adults would have to verify their ages -- to engage in interactive gaming on Facebook but not on websites such as Roblox, whose primary function is interactive gaming, it said.

The requirement that people of all ages have to hand over personal information or identification before securing or continuing to access accounts violates the First Amendment for burdening the exercise of speech, said the complaint. The U.S. Supreme Court has held that governments may not require minors to secure parental consent before accessing protected speech, it said, citing Brown v. Entertainment Merchants Association.

The act’s ban on displaying any advertising in minors’ accounts also violates the First Amendment and is preempted under Section 230, the complaint said. “This blanket ban affects websites’ First Amendment right to disseminate advertisements, individuals’ right to speak, and minors’ right to view advertisements,” the complaint said. The act leaves “advertising” undefined and could require websites to monitor for advertising in user-generated content, “like teens offering babysitting services to neighbors,” it said.

Also unconstitutional are the act’s provisions of bans on displaying personalized content to minors, collecting or using any personal information from minors and prohibiting minors from using the covered websites from 10:30 p.m. to 6:30 a.m., the complaint said.

NetChoice believes that “families equipped with educational resources are capable of determining the best approach to online services and privacy protections for themselves,” blogged spokesperson Krista Chavez Monday. The suit against Utah is to ensure that all the state’s citizens “can embrace digital tools without the forceful clutch of government control,” said Chris Marchese, NetChoice Litigation Center director. “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,” he said.

Utah residents don’t have to choose “between their constitutional rights, parental rights, cybersecurity, kids’ safety or economic engine,” Chavez said. “With NetChoice v. Reyes, we will fight to ensure that Utah’s Invasion of Privacy Acts are halted,” and NetChoice “looks forward to seeing the State in court.” Reyes’ office was reviewing the lawsuit Monday and preparing a response.