Utah Gov. Spencer Cox brushed off concerns that a pair of bills aimed to curb minors’ use of social media may run afoul of First Amendment protections, telling reporters Thursday that he intends to sign the legislation and looks forward to defending the bills from a likely legal challenge.
SB152 requires social media companies to verify the age of all users from Utah before they can access their platforms. It also requires social media companies to obtain consent from parents before a minor is able to open an account and puts several restrictions on how that account’s use.
HB311 prohibits social media companies from using a “design or feature” that causes a minor to become addicted to their service. Both bills create a mechanism allowing private citizens to file suits for violations.
At his monthly news conference Thursday, Cox said he is not worried if there is a legal challenge to those pieces of legislation because a growing body of research shows social media presents an unacceptable health risk to children.
“You don’t need to just rely on the experts for this. One of my favorite things to do is ask teenagers if they are seeing an increase among their friends in depression, anxiety and self-harm. Every one of them will say yes. Then I ask what they think is causing it. Every one of them told me it’s social media,” Cox said.
“I’m not going to back down from a potential legal challenge when these companies are killing our kids,” Cox alleged.
A future legal challenge
Last month, a group of First Amendment scholars joined TechFreedom, a non-partisan technology think tank, in a letter to Cox warning that the two pieces of legislation likely ran afoul of the First Amendment.
“This age-verification mandate is even more sweeping than those enacted by Congress in 1996 and 1998 — both of which were struck down by the courts,” the letter says.
Additionally, TechFreedom argues that since there is no way for social media companies to know if a user is not a resident of Utah before verification, the sites will be required to age-verify every user regardless of their location.
Ari Cohn, a freedom of speech attorney for TechFreedom, explained requiring age verification violates the First Amendment rights of adults because it infringes on their right to access and comment on social media platforms anonymously. But not only adults would see their First Amendment rights violated.
“Minors have substantial First Amendment rights, limited in only very narrow circumstances that almost entirely relate to sexually-oriented materials,” Cohn said in an email to The Salt Lake Tribune. “Requiring parental consent before they can speak or obtain information on social media is simply not one of those narrow circumstances.”
Cohn says governments have made several attempts to expand prohibitions on minors accessing content beyond the current sexual-oriented obscenity standard. In 1992, Nassau County in New York attempted to outlaw trading cards that depicted mass murderers and other criminals that were “harmful to minors.” In 2005, California lawmakers passed legislation banning the sale of certain violent video games to minors without parental consent. Both were struck down on First Amendment grounds.
On Thursday, Cox acknowledged that existing jurisprudence was against Utah’s efforts to restrict access to social media, arguing previous cases were “wrongly decided.”
“We have new facts about the internet and about social media platforms that were not available when those cases were decided. The internet is a very different thing. Social media didn’t even exist when most of those cases were decided,” Cox said.
Cohn countered, saying that the courts place a high burden on attempts by the government to restrict free expression, even if the aim is to protect citizens.
The attorney says his group has no plans to file suit once Cox signs the bills into law, but he anticipates several other lawsuits to materialize in short order.
This is not the first time Utah lawmakers have attempted to restrict or regulate social media:
In 2021, Sen. Mike McKell, R-Spanish Fork, also the sponsor of SB152, passed a bill allowing the state to fine social media companies if they did not explain why they moderated or removed a post from a user in Utah. That proposal was vetoed by Cox, the first of his tenure as governor.
In the spring of 2021, Senate President Stuart Adams said he wanted to lead a multi-state effort to regulate how social media companies regulate content. So far, that effort has failed to produce any concrete results.
Later in 2021, lawmakers threatened to raise taxes on social media companies if they didn’t come to the bargaining table over proposed regulations.
In the 2022 session, McKell watered down his previous proposal. His updated bill only required social media companies to inform Utah users of their moderation practices and when a violation occurred. The bill died without a floor vote in the Senate.
And earlier this year, Cox, along with Attorney General Sean Reyes, announced that sometime in the future they would take legal actions against social media companies to address, what they called, the harm that digital platforms are doing to the mental health of Utah’s youth.
Social media sparring
In a demonstration of the pitfalls adults can face on social media, Cox and Cohn recently tangled on Twitter about the proposed social media regulations.
On Twitter Wednesday, Cohn quoted a previous post he made arguing the two Utah bills violated the First Amendment and implied that Cox should veto both pieces of legislation.
“He must now decide whether to do what is right, or what is politically expedient,” Cohn wrote
Cox responded, “Can’t wait to fight this lawsuit. You are wrong and I’m excited to prove it.”
“Dreadfully disappointing that you think government can condition the First Amendment rights of anyone under 18 on the prior consent of a parent. Utahns deserve better,” Cohn replied.
“And you deserve better legal counsel,” the governor responded moments later.
“Indeed, what could I, a mere first Amendment lawyer, know about such things?” Cohn replied sarcastically.
At that point, Cox abruptly ended the exchange.
“See you in court,” Cox said curtly.
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