Section 230 Doesn't Preempt Utah Social Media Law, Says AG’s Motion to Dismiss

Utah Attorney General Sean Reyes (R) is seeking the dismissal of count VI of NetChoice’s 11-count complaint that argues Section 230 of the Communications Decency Act (see 2405060006) preempts the state’s Minor Protection in Social Media Act, a motion said Friday (docket 2:23-cv-00911) in U.S. District Court for Utah in Salt Lake City. Katherine Hass, director of Utah’s Division of Consumer Protection, joined Reyes in the motion.

Reyes and Hass also contemporaneously filed their opposition Friday against NetChoice’s May 3 motion for a preliminary injunction. That injunction would block Reyes from enforcing the statute when it takes effect Oct. 1. They argued in their opposition that the Utah statute “is appropriately tailored to advance significant government interests under the First Amendment test for reasonable time, place, and manner restrictions.”

Section 230 forbids treating interactive computer services as the publishers or speakers of information that another information content provider posts, the motion said. “By its plain terms, this forbids suits against service providers based on content made by someone else,” it added. “They can allow the content to be on their service without fear of liability,” it said.

NetChoice hasn’t stated “which strain of preemption it believes applies, but is entitled to relief under none of them,” said Utah's motion to dismiss. The nature of NetChoice’s preemption argument “appears to be one of express preemption,” it said. “Yet however the argument is construed, it fails" because there's nothing in the statute that’s “inconsistent” with Section 230, it said.

Congress hasn’t “occupied the field of social media regulation,” and it’s “not impossible for NetChoice to comply with both” Section 230 and the Utah statute, the motion said. As such, Utah's statute doesn’t “frustrate” congressional objectives in Section 230, it said. In fact, it complements them. Thus, the motion to dismiss should be granted, the motion argued.

Nothing in the Utah statute is inconsistent with Section 230 because Section 230 doesn’t “sweep as broadly as NetChoice asserts,” said the motion. To begin with, Section 230 has an anti-preemption provision, it said.

Section 230's plain terms “merely prohibit covered sites from liability for presenting or censoring others’ speech, and say under what circumstances publisher-like functions are protected,” said the motion. That’s “a far cry” from expressly forbidding states from imposing design regulations at issue in the Utah statute, it said.

To the extent that the cases NetChoice cites in its complaint take a broad view of Section 230 immunity, “they contradict Section 230’s plain terms,” the motion said. The plain text of Section 230 only prohibits treating a provider as the publisher of user-provided content, and holding providers liable for restricting or allowing others to restrict objectionable material, it said. Those plain terms include an anti-preemption provision, it added.

In its preliminary injunction motion, NetChoice claims that the circuits agree that Section 230(c)(1) “should be broadly construed to favor immunity,” said the motion. But the circuits “are far from united on that point,” it said. Multiple circuits and district courts “have rightly urged caution about a broad reading” of Section 230, it said. This court “should take this more restrained approach, given Section 230’s own stated tolerance” for consistent state regulation, it said.