NetChoice files updated complaint against Utah social media law

Social media apps are pictured on an iPhone in Salt Lake City on Monday, March 11, 2024.
Social media apps are pictured on an iPhone in Salt Lake City on Monday, March 11, 2024. | Kristin Murphy, Deseret News

Utah changed its social media law that is scheduled to go into effect on Oct. 1. Is it still being challenged in the courts?

That’s the question the Deseret News asked NetChoice and the Foundation for Individual Rights and Expression on Friday morning.

In response, a communications manager for NetChoice sent the Deseret News an updated complaint which was filed Friday.

“Regrettably, Utah’s government has chosen to double down on its misguided laws that thwart parents, undermine the state’s dynamic creator economy, jeopardize the data security of its citizens and violate their constitutional rights,” Chris Marchese, director of NetChoice, said in a release. “Utahns — not the government — should be able to determine how they and their families use technology. We look forward to seeing the State in court.”

A spokesperson for FIRE declined to give an update. The Utah attorney general’s office also did not immediately return a request for comment.

FIRE and NetChoice sued the state of Utah over the Social Media Regulation Act. Tech industry group NetChoice filed its original suit on Dec. 18, 2023, and claimed, “The act 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.”

A month later, FIRE filed a suit that claimed the law “imposes an elaborate surveillance regime and mandates censorship, irrespective of parents’ views.”

As it stands now, the law would require social media companies to identify the ages of its users and give children the maximum privacy settings automatically. It would also disable search engine indexing of children’s accounts, prevent companies from collecting children’s data, and disable features like perpetual scrolling and push notifications.

The law also offers a path for social media companies to be held liable. If they have a curation algorithm, it allows children and parents to sue for harms related to social media. If these companies do not obtain parental consent for a minor’s use of a platform, do not remove features like perpetual scrolling and push notifications, do not display content chronologically and do not limit children’s time on the platform, then the law establishes a path to holding companies liable.

The legal arguments against Utah’s social media law have generally invoked the First Amendment as well as the due process clause of the 14th Amendment and the commerce clause of the U.S. Constitution. Lawyers representing FIRE argued that in order for the Social Media Regulation Act to be constitutional, it would have to pass strict scrutiny.

Strict scrutiny is a kind of legal test where the government must show the law is targeted toward an issue with compelling interest and is written in the narrowest, least restrictive way possible. “In adopting the Social Media Act, the Legislature ignored the wealth of tools already available to help parents protect their children online; less restrictive policies that enable or encourage users (or their parents) to control their own access to information, whether through user-installed devices and filters or requests to third-party companies; and laws requiring media safety education,” the FIRE suit against Utah said.

After Utah made its changes to the social media law, Cox praised the changes legislators made during the session.

“I will say that these are still the strongest social media bills in the country right now,” Cox said as the legislative session came to an end. “And with the changes that have been implemented, I feel really, really confident about what we’re doing and I do believe that it will help us withstand some of the judicial scrutiny that will be coming as we move forward with these cases.”

“We won’t stand by while social media companies continue to exploit kids,” Sen. Mike McKell, R-Spanish Fork, said in a release dated Feb. 5, announcing the changes. “Social media companies know the harm they are inflicting on our youth’s mental health — and we’re not going to look away. Utah will continue to lead out on protecting youth and providing parents with tools and resources. This is an unprecedented issue we’re dealing with, and it requires novel legislation.”

Sen. Kirk A. Cullimore, R-Draper, another sponsor of the legislation, said, “As a father of six children, I have seen social media’s negative impact on kids firsthand. We’ve shown time and time again that Utah deeply cares about youth mental health.”

“We’re committed to getting this right and finding ways to protect our youth from dangerous algorithms, data collection and the overall detrimental effects of social media.”