• by Wendy Davis  @wendyndavis, March 3, 2023

Utah lawmakers this week passed a package of bills that would prohibit social-media companies from allowing minors under 18 to have accounts, without parental permission, and would ban the companies from serving any ads to minors.

In addition to those restrictions, the Social Media Regulation Act (SB 152) would require social media companies to verify all current and prospective users' ages, and would force social media companies to allow parents to access all content and interactions of their underage children's accounts.

A companion bill (HB 311) would prohibit social media companies from designing their services in a way that “causes a minor to have an addiction to the company's social media platform.”

Both bills would apply to social media companies with more than 5 million worldwide users.

The tech industry organization NetChoice is urging Utah Governor Spencer Cox to veto both bills.

“I would hope the governor realizes that these bills are not only unconstitutional, but more importantly, would harm hundreds of Utah businesses, and put at risk the privacy and security of every resident in the state,” NetChoice vice president and general counsel Carl Szabo tells MediaPost.

NetChoice said in a letter sent to Cox on Thursday that laws requiring companies to verify users' ages compromise their First Amendment right to speak anonymously or pseudonymously. Without that ability, Utah residents will be discouraged from “sharing criticism, such as negative consumer reviews, or whistleblowing about wrongful conduct,” NetChoice writes.

The group also said that requiring companies to collect sensitive information about underage users will pose security threats. 

Szabo says Utah's proposed ban on advertising to teens is also unconstitutional, adding that prohibitions on advertising are only permissible when they “directly and materially” advance a substantial governmental interest.

He notes that Utah's proposed broad prohibition of social media ads to minors would apply even to campaigns that “would be considered quote-unquote 'good advertising,'” such as ads telling teens how to avoid opioids.

Chris Oswald, executive vice president at the Association of National Advertisers, added that the organization is concerned about the "proposed ban on social media advertising to older teens, particularly those on the cusp of adulthood, who should be able to access ad-based information about colleges, trade programs, military recruitment, job opportunities, cars, apartments and other resources for their future."

"We hope legislators in other states recognize the difference between a 7-year-old and a 17-year-old and apply a more rational standard allowing older teens to access the wealth of ad-based content and information available to them online," Oswald said through a spokesperson.

NetChoice's Szabo also says the bill's definition of “social media platform” is vague and ambiguous.

The measure broadly defines social media platform as an online forum where account holders can create profiles, upload posts, view other account holders' posts, and interact with others.

But the bill also excludes a host of online services from that definition -- including services offering “news, sports, entertainment, or other content that is preselected by the provider and not user generated” as well as services that offer “interactive gaming” and “virtual gaming.”

Last month, the think tank TechFreedom and a group of law professors told Cox that the proposed laws will violate the First Amendment.

“Utah lawmakers are right to be concerned about the well-being of young Utahns, but they cannot run roughshod over youths’ civil liberties in the name of protecting them,” TechFreedom and the law professors wrote in a letter to the governor.

They added that the Supreme Court has already ruled that minors have First Amendment rights to access non-obscene material.

In 2011, the Supreme Court voted 7-2 to strike down a California law that banned the sale of violent video games to minors, without parental consent.

“No doubt a State possesses legitimate power to protect children from harm ... but that does not include a free-floating power to restrict the ideas to which children may be exposed,” Justice Antonin Scalia wrote for the majority in that case.

Utah isn't the only state attempting to regulate social media.

California recently passed the Age-Appropriate Design Code, which requires online companies that are likely to be accessed by users under 18 to prioritize their “best interests” and “well-being."

NetChoice has asked a federal judge to strike down that law for numerous reasons, including that the requirement to prioritize teens' well-being violates the First Amendment.

“The 'harm' the law seeks to address -- that content might damage someone’s 'well-being' -- is a function of human communication itself,” NetChoice wrote in its request for an injunction.