Utah’s ‘Protect The Kids Online!’ Law Rejected By Court

Over the last few years, politicians in Utah have been itching to pass terrible internet legislation. Some of you may forget that in the earlier part of the century, Utah became somewhat famous for passing absolutely terrible internet laws that the courts then had to clean up. In the last few years, it’s felt like other states have passed Utah, and maybe its lawmakers were getting a bit jealous in losing their “we pass batshit crazy unconstitutional internet laws” crown.

So, two years ago, they started pushing a new round of such laws. Even as they were slamming social media as dangerous and evil, Utah Governor Spencer Cox proudly signed the new law, streaming it on all the social media sites he insisted were dangerous. When Utah was sued by NetChoice, the state realized that the original law was going to get laughed out of court and they asked for a do-over, promising that they were going to repeal and replace the law with something better. The new law changed basically nothing, though, and an updated lawsuit (again by NetChoice) was filed.

The law required social media companies to engage in “age assurance” (which is just a friendlier name for age verification, but still a privacy nightmare) and then restrict access to certain types of content and features for “minor accounts.”

Cox also somewhat famously got into a fight on ExTwitter with First Amendment lawyer Ari Cohn. When Cohn pointed out that the law clearly violates the First Amendment, Cox insisted: “Can’t wait to fight this lawsuit. You are wrong and I’m excited to prove it.” When Cohn continued to point out the law’s flaws, Cox responded “See you in court.”

In case you’re wondering how the lawsuit is going, last night Ari got to post an update:

The law is enjoined. The court found it to likely be unconstitutional, just as Ari and plenty of other First Amendment experts expected. This case has been a bit of a roller coaster, though. A month and a half ago, the court said that Section 230 preemption did not apply to the case. The analysis on that made no sense. As we just saw, a court in Texas threw out a very similar law and said that since it tried to limit how sites could moderate content, it was preempted by Section 230. But, for a bunch of dumb reasons, the judge here, Robert Shelby, argued that the law wasn’t actually trying to impact content moderation (even though it clearly was).

But, that was only part of the case. The latest ruling found that the law almost certainly violates the First Amendment anyway:

NetChoice’s argument is persuasive. As a preliminary matter, there is no dispute the Act implicates social media companies’ First Amendment rights. The speech at issue in this case— the speech social media companies engage in when they make decisions about how to construct and operate their platforms—is protected speech. The Supreme Court has long held that “[a]n entity ‘exercis[ing] editorial discretion in the selection and presentation’ of content is ‘engage[d] in speech activity’” protected by the First Amendment. And this July, in Moody v. NetChoice, LLC, the Court affirmed these First Amendment principles “do not go on leave when social media are involved.” Indeed, the Court reasoned that in “making millions of . . . decisions each day” about “what third-party speech to display and how to display it,” social media companies “produce their own distinctive compilations of expression.”

Furthermore, following on the Supreme Court’s ruling earlier this year in Moody about whether or not the entire law can be struck down on a “facial” challenge, the court says “yes” (this issue has recently limited similar rulings in Texas and California):

NetChoice has shown it is substantially likely to succeed on its claim the Act has “no constitutionally permissible application” because it imposes content-based restrictions on social media companies’ speech, such restrictions require Defendants to show the Act satisfies strict scrutiny, and Defendants have failed to do so.

Utah tries to argue that this law is not about speech and content, but rather about conduct and “structure,” as California did in challenges to its “kids code” law. The court is not buying it:

Defendants respond that the Definition contemplates a social media service’s “structure, not subject matter.” However, Defendants’ argument emphasizes the elements of the Central Coverage Definition that relate to “registering accounts, connecting accounts, [and] displaying user-generated content” while ignoring the “interact socially” requirement. And unlike the premises-based distinction at issue in City of Austin, the social interaction-based distinction does not appear designed to inform the application of otherwise content-neutral restrictions. It is a distinction that singles out social media companies based on the “social” subject matter “of the material [they] disseminate[].” Or as Defendants put it, companies offering services “where interactive, immersive, social interaction is the whole point.”

The court notes that Utah seems to misunderstand the issue, and finds the idea that this law is content neutral to be laughable:

Defendants also respond that the Central Coverage Definition is content neutral because it does not prevent “minor account holders and other users they connect with [from] discuss[ing] any topic they wish.” But in this respect, Defendants appear to misunderstand the essential nature of NetChoice’s position. The foundation of NetChoice’s First Amendment challenge is not that the Central Coverage Definition restricts minor social media users’ ability to, for example, share political opinions. Rather, the focus of NetChoice’s challenge is that the Central Coverage Definition restricts social media companies’ abilities to collage user-generated speech into their “own distinctive compilation[s] of expression.”

Moreover, because NetChoice has shown the Central Coverage Definition facially distinguishes between “social” speech and other forms of speech, it is substantially likely the Definition is content based and the court need not consider whether NetChoice has “point[ed] to any message with which the State has expressed disagreement through enactment of the Act.”

Given all that, strict scrutiny applies, and there’s no way this law passes strict scrutiny. The first prong of the test is whether or not there’s a compelling state interest in passing such a law. And even though it’s about the moral panic of kids on the internet, the court says there’s a higher bar here. Because we’ve done this before, with California trying to regulate video games, which the Supreme Court struck down fourteen years ago:

To satisfy this exacting standard, Defendants must “specifically identify an ‘actual problem’ in need of solving.” In Brown v. Entertainment Merchants Association, for example, the Supreme Court held California failed to demonstrate a compelling government interest in protecting minors from violent video games because it lacked evidence showing a causal “connection between exposure to violent video games and harmful effects on children.” Reviewing psychological studies California cited in defense of its position, the Court reasoned research “show[ed] at best some correlation between exposure to violent entertainment” and “real-world effects.” This “ambiguous proof” did not establish violent videogames were such a problem that it was appropriate for California to infringe on its citizens’ First Amendment rights. Likewise, the Court rejected the notion that California had a compelling interest in “aiding parental authority.” The Court reasoned the state’s assertion ran contrary to the “rule that ‘only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to [minors].’”

While there’s lots of screaming and yelling about how social media is bad for kids’ mental health, as we directly told Governor Cox, the evidence just doesn’t support the claim. The court seems to recognize that the claims are a lot of hot air as well. Indeed, Utah submitted the Surgeon General’s report as “proof,” which apparently they didn’t even read. As we noted, contrary to the media reporting on that report, it contained a very nuanced analysis that does not show any causal harms to kids from social media.

The judge absolutely noticed that.

First, though the court is sensitive to the mental health challenges many young people face, Defendants have not provided evidence establishing a clear, causal relationship between minors’ social media use and negative mental health impacts. It may very well be the case, as Defendants allege, that social media use is associated with serious mental health concerns including depression, anxiety, eating disorders, poor sleep, online harassment, low self-esteem, feelings of exclusion, and attention issues. But the record before the court contains only one report to that effect, and that report—a 2023 United States Surgeon General Advisory titled Social Media and Youth Mental Health—offers a much more nuanced view of the link between social media use and negative mental health impacts than that advanced by Defendants. For example, the Advisory affirms there are “ample indicators that social media can . . . have a profound risk of harm to the mental health and well-being of children and adolescents,” while emphasizing “robust independent safety analyses of the impact of social media on youth have not yet been conducted.” Likewise, the Advisory observes there is “broad agreement among the scientific community that social media has the potential to both benefit and harm children and adolescents,” depending on “their individual strengths and vulnerabilities, and . . . cultural, historical, and socio-economic factors.” The Advisory suggests social media can benefit minors by “providing positive community and connection with others who share identities, abilities, and interest,” “provid[ing] access to important information and creat[ing] a space for self-expression,” “promoting help-seeking behaviors[,] and serving as a gateway to initiating mental health care.”

The court is also not at all impressed by a declaration Utah provided by Jean Twenge, who is Jonathan Haidt’s partner-in-crime in pushing the baseless moral panic narrative about kids and social media.

Moreover, a review of Dr. Twenge’s Declaration suggests the majority of the reports she cites show only a correlative relationship between social media use and negative mental health impacts. Insofar as those reports support a causal relationship, Dr. Twenge’s Declaration suggests the nature of that relationship is limited to certain populations, such as teen girls, or certain mental health concerns, such as body image.

Then the court points out (thank you!) that kids have First Amendment rights too:

Second, Defendants’ position that the Act serves to protect uninformed minors from the “risks involved in providing personal information to social media companies and other users” ignores the basic First Amendment principle that “minors are entitled to a significant measure of First Amendment Protection.” The personal information a minor might choose to share on a social media service—the content they generate—is fundamentally their speech. And the Defendants may not justify an intrusion on the First Amendment rights of NetChoice’s members with, what amounts to, an intrusion on the constitutional rights of its members’ users…

Furthermore, Utah fails to meet the second prong of strict scrutiny, that the law be “narrowly tailored.” Because it’s not:

To begin, Defendants have not shown the Act is the least restrictive option for the State to accomplish its goals because they have not shown existing parental controls are an inadequate alternative to the Act. While Defendants present evidence suggesting parental controls are not in widespread use, their evidence does not establish parental tools are deficient. It only demonstrates parents are unaware of parental controls, do not know how to use parental controls, or simply do not care to use parental controls. Moreover, Defendants do not indicate the State has tried, or even considered, promoting “the diverse supervisory technologies that are widely available” as an alternative to the Act. The court is not unaware of young people’s technological prowess and potential to circumvent parental controls. But parents “control[] whether their minor children have access to Internet-connected devices in the first place,” and Defendants have not shown minors are so capable of evading parental controls that they are an insufficient alternative to the State infringing on protected speech.

Also, this:

Defendants do not offer any evidence that requiring social media companies to compel minors to push “play,” hit “next,” and log in for updates will meaningfully reduce the amount of time they spend on social media platforms. Nor do Defendants offer any evidence that these specific measures will alter the status quo to such an extent that mental health outcomes will improve and personal privacy risks will decrease

The court also points out that the law targets social media only, and not streaming or sports apps, but if it was truly harmful, then the law would have to target all of those other apps as well. Utah tried to claim that social media is somehow special and different than those other apps, but the judge notes that they provide no actual evidence in support of this claim.

But Defendants simply do not offer any evidence to support this distinction, and they only compare social media services to “entertainment services.” They do not account for the wider universe of platforms that utilize the features they take issue with, such as news sites and search engines. Accordingly, the Act’s regulatory scope “raises seriously doubts” about whether the Act actually advances the State’s purported interests.

The court also calls out that NetChoice member Dreamwidth, run by the trust & safety expert known best online as @rahaeli, proves how stupid and mistargeted this law is:

Finally, Defendants have not shown the Act is not seriously overinclusive, restricting more constitutionally protected speech than necessary to achieve the State’s goals. Specifically, Defendants have not identified why the Act’s scope is not constrained to social media platforms with significant populations of minor users, or social media platforms that use the addictive features fundamental to Defendants’ well-being and privacy concerns. NetChoice member Dreamwidth, “an open source social networking, content management, and personal publishing website,” provides a useful illustration of this disconnect. Although Dreamwidth fits the Central Coverage Definition’s concept of a “social media service,” Dreamwidth is distinguishable in form and purpose from the likes of traditional social media platforms—say, Facebook and X. Additionally, Dreamwidth does not actively promote its service to minors and does not use features such as seamless pagination and push notification.

The court then also notes that if the law went into effect, companies would face irreparable injury, given the potential fines in the law.

This harm is particularly concerning given the high cost of violating the Act—$2,500 per offense—and the State’s failure to promulgate administrative rules enabling social media companies to avail themselves of the Act’s safe harbor provision before it takes effect on October 1, 2024.

Some users also sued to block the law, and the court rejected that request as there is no clear redressable injury for those plaintiffs yet, and thus they have no standing to sue at this point. That could have changed after the law started to be enforced, but thanks to the injunction from the NetChoice part, the law is not going into effect.

Utah will undoubtedly waste more taxpayer money and appeal the case. But, so far, these laws keep failing in court across the country. And that’s great to see. Kids have First Amendment rights too, and one day, our lawmakers should start to recognize that fact.