NetChoice Injunction Would Block Enforcement of Utah Social Media Law

NetChoice is seeking a preliminary injunction blocking Utah Attorney General Sean Reyes (R) from enforcing the Utah Social Media Regulation Act against NetChoice members when the statute takes effect March 1 (see 2312180054), said its Dec. 20 memorandum (docket 2:23-cv-00911) in U.S. District Court for Utah in Salt Lake City.

The statute is unconstitutional because it uses content-, viewpoint- and speaker-based definitions to restrict minors’ and adults’ ability to access and engage in protected speech, said the NetChoice memorandum. It also uses those definitions to restrict how certain websites organize, display and disseminate protected speech, it said. The entire statute violates the First Amendment and the due process clause, and parts of it also are preempted by Section 230 of the Communications Decency Act, it said.

New types of media continually emerge, and they evolve and “reinvent the ways that we speak and engage,” said the memorandum. Yet governments “too often try to regulate" those new media, "fearing that widespread adoption may be harmful,” it said.

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 media “because new channels of expression may endanger or harm our youth,” said the memorandum. But the U.S. Supreme Court “has consistently rejected” as contrary to the First Amendment “state control" of minors' use of new media technology, it said.

The Utah statute “should likewise be rejected as an unconstitutional attempt to regulate minors’ ability to access, speak, hear, share, and otherwise engage in protected speech,” said the memorandum. The statute requires a content-, viewpoint- and speaker-based “subset of covered websites” to 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 an overnight “curfew,” it said.

But the statute exempts dozens of categories of comparable websites “that disseminate the same or similar speech,” said the memorandum. Its bans and restrictions “also impede adults’ ability to access and engage in protected speech on covered websites,” it said. Decades of First Amendment precedent “prohibit all of this,” it said.

The statute’s “haphazard” definitions “create illogical results,” said the memorandum. YouTube must comply with it, but Netflix is exempted, it said. The X platform also must comply, but Bluesky, Gab and Truth Social are exempted because the statute applies only to websites that have at least 5 million global account holders, it said. Because the statute “disfavors” only certain websites, it can’t survive “any level of First Amendment scrutiny -- much less strict scrutiny -- and it is therefore unconstitutional,” it said.