Utah’s new social media laws focusing on minors, now the most restrictive in the US, are all but guaranteed to draw legal challenges, attorneys told Bloomberg Law.
The two measures reflect many state legislatures’ shifting focus toward consumer privacy issues, particularly those regarding children. They are designed to give parents more control over their children’s access to platforms like Instagram and Snapchat and to protect minors from advertising and addictive features. Both Utah laws give the state regulatory enforcement power while also enabling residents to sue companies that violate their rights.
Technology and advertising industry groups have raised concerns that Utah’s first-in-the-nation legislation may violate First Amendment free speech rights. If any of them sue, they’re likely to also claim the laws conflict with the federal Communications Decency Act’s Section 230 protections, or should be preempted entirely by another federal law—the Children’s Online Privacy Protection Act, attorneys said.
The stage may be set for a lawsuit over Utah’s legislation, as groups such as NetChoice have expressed willingness to challenge other states’ internet privacy laws in court.
“I’d be shocked if it wasn’t challenged, and I think it’s a question of when it’s challenged, not a question of if,” said David Stauss, a privacy and cybersecurity partner at Husch Blackwell LLP.
Utah Gov. Spencer Cox (R), who signed both bills into law Thursday, has said he expected them to draw a legal challenge “from the beginning.” The measure known as S.B. 152 requires that parental consent be given for minors to sign up for social media accounts and that platforms verify the age of users younger than 18. The law also gives parents access to their children’s posts and messages.
The other legislation, H.B. 311, holds platforms liable for civil fines of up to $250,000 if they use addictive features on minors. Utah officials cited the impact of social media on teens’ mental health as their impetus for the laws.
Tech industry groups that publicly opposed passage of the Utah laws—including NetChoice and the Computer & Communications Industry Association—declined to comment directly on whether they plan to sue.
“We have not ruled out any options to respond to these problematic measures,” the CCIA said in a statement to Bloomberg Law.
TechNet did not return multiple requests for comment.
Constitutional Challenges
NetChoice, which represents big tech companies such as
The Association of National Advertisers also raised First Amendment concerns over S.B. 152, which prohibits advertising on teens’ social media accounts. The law “limits the ability of older teens to get important information they need, including ad-based information about colleges, trade programs, military recruitment, job opportunities, apartments, and other resources for their futures,” Chris Oswald, ANA’s executive vice president and head of law, ethics, and government relations, said in a statement.
The laws infringe on the First Amendment by preventing users from browsing or posting anonymously and by restricting access to certain content based on age, NetChoice argued in a letter to Cox earlier this month that urged him to veto the bills.
Utah’s Division of Consumer Protection is tasked with determining the proper form of age verification, “which may not be limited to a valid identification card issued by a government entity,” according to the H.B. 311 text.
The law may unintentionally chill free speech by requiring users to in some way identify themselves to the platforms even if they wish to remain anonymous for political, religious, sexual identity, or other reasons, said Larry Magid, the founder of online safety and privacy nonprofit ConnectSafely.
“There’s nothing in the First Amendment that says you have to be 21 or 18 to enjoy the protection of the amendment, it simply says that government shall not restrict the freedom of speech,” Magid said.
Too Heavy a Burden?
Attempts to filter content by age have been previously struck down by the US Supreme Court, with justices finding in the 1997 case Reno v. American Civil Liberties Union that a law designed to prevent minors from accessing explicit material would inhibit adults’ access and placed an “unacceptably heavy burden on protected speech.”
NetChoice pointed to the decision in its letter, which has also informed the basis of the organization’s lawsuit over California’s Age-Appropriate Design Code Act, signed into law in 2022.
“If the law from 25 years ago is still good law, these cases are easy: The states will lose,” said Eric Goldman, an internet law professor at Santa Clara University School of Law.
Utah will likely face claims that its social media laws violate the dormant commerce clause, inferred by courts from the Constitution, because it imposes the state’s requirements on out-of-state businesses and consumers, Goldman said.
The new social media laws might also face a “void for vagueness” constitutional challenge, attorneys said. Insufficient details on implementing requirements and hard-to-define concepts like “addictive features” may prove too onerous for social media companies to comply with, said Rafael Langer-Osuna, a partner at Squire Patton Boggs LLP specializing in litigation and privacy law.
The “devil is in the details” of what regulations will accompany the laws in determining how successful a lawsuit against Utah might be, said Nadia Aram, of counsel for Womble Bond Dickinson LLP.
“The ability to enforce them too, I think, is a part of the equation of whether this is going to be a powerful change factor,” Aram said, “because if the laws pass and then the Utah regulators don’t have the resources, or the privacy expertise, or whatnot to actually enforce these, they may look good on paper but may not be that impactful.”
California Bellwether
NetChoice’s lawsuit filed against California over the state’s Age-Appropriate Design Code Act, enacted in August 2022, is likely the best preview of how groups might challenge Utah’s social media laws, attorneys said.
Whoever sues could argue, as NetChoice has, that the social media rules are preempted by—or run afoul of—existing federal law, they said. The NetChoice-California court battle is likely to conclude before any Utah-related cases and produce a precedent that could influence any legal challenge there, Aram said.
Utah could see an argument that its laws conflict with the Children’s Online Privacy Protection Act of 1998, a federal law that establishes limits on how online platforms collect information on children under age 13, Stauss of Husch Blackwell said.
Whether a COPPA preemption argument would survive in court is difficult to determine because “there’s not a lot of case law out there on COPPA preemption out there, there just isn’t,” Stauss said.
Plaintiffs might also allege the social media requirements violate Section 230 of the 1996 Communications Decency Act, Langer-Osuna of Squire Patton Boggs said.
Requiring social media companies to eliminate addictive features for minors, as mandated by H.B. 311, could constitute content moderation and inhibit the discretion Section 230 grants an online platform in deciding what it publishes, they said.
NetChoice has claimed both COPPA and Section 230 violations in its lawsuit against California, but the court hasn’t yet ruled on the merits of those arguments.
Both the Utah governor and attorneys interviewed by Bloomberg Law expect any lawsuit filed in response to the state’s new laws to end up in federal appellate court, if not before the Supreme Court in a few years.
—With assistance from Brenna Goth.
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