Utah’s new social media regulation may ‘completely change’ this year on heels of second lawsuit

A second federal lawsuit challenging the constitutionality of Utah’s social media restrictions was filed on Tuesday as lawmakers eyes revising their 2023 efforts.

(Trent Nelson/The Salt Lake Tribune). Utah Gov. Spencer Cox signs two social media regulation bills during a ceremony at the Capitol building in Salt Lake City on Thursday, March 23, 2023. Facing a pair of federal lawsuits, lawmakers may "completely change" the laws this year.

Sweeping social media regulations approved by Utah lawmakers last year are set to go into effect on March 1 — for now.

Legislators want to push that deadline back to the fall, hoping it will pause a lawsuit from tech industry groups claiming the law is unconstitutional. A second lawsuit challenging the regulations filed on Tuesday could complicate that effort.

Last year, lawmakers passed a pair of bills that make up the “Utah Social Media Regulation Act.” Lawmakers and Gov. Spencer Cox argued the law would protect children from the dangers of social media. Minors under 18 in Utah would be banned from using social media unless they get permission from a parent or guardian. Platforms would also be required to verify the age of every user to enforce that provision. A social media curfew prohibiting minors from using social media between 10:30 p.m. and 6:30 a.m. unless authorized by a parent is also part of the law.

When he signed the legislation into law last March, Cox nearly dared critics to sue the state over the law.

“I’m not going to back down from a potential legal challenge when these companies are killing our kids,” Cox said at the time.

In December, NetChoice, which represents and lobbies for several big tech platforms, filed suit in federal court, alleging the restrictions violate First Amendment free speech protections, the Equal Protection Clause of the 14th Amendment, and federal law. Additionally, the plaintiffs filed a motion seeking a preliminary injunction to stop the law from going into effect in March. A hearing on the preliminary injunction request is scheduled for early February.

Senate Assistant Majority Whip Kirk Cullimore, R-Sandy, hopes that won’t be needed. This year, he is sponsoring SB89, which pushes the effective date of new regulations back to Oct. 1.

A Senate committee unanimously approved Cullimore’s bill without debate on Wednesday afternoon. The date change will be implemented immediately if the bill is approved by a two-thirds vote in both the House and Senate and signed by Cox.

Cullimore, a lawyer, said the yet-to-be-implemented social media regulations are headed for a complete overhaul - he called the effort “repeal and replace.” Those changes, he said, will hopefully address many of the concerns detailed in the lawsuit.

“We’ve tried to convey that these bills are going to completely change. And so let’s not waste resources and attorney time on litigating something that’s not going to be the same,” Cullimore said.

(Trent Nelson | The Salt Lake Tribune) Sen. Kirk Cullimore, R-Sandy, at the Capitol building in Salt Lake City on Friday January 20, 2023.

Cullimore said lawmakers are still hammering out those proposed changes, which should be made public sometime soon.

“I think a lot of the same principles are still going to apply. We want to have parent oversight. We want to have parameters around what data is being collected on minors, the type of algorithms that are being pushed on minors to create these potentially addictive behaviors,” Cullimore said during a Wednesday media availability. “And so all those same principles are going to fit within this bill. We’re just trying to find the right way to navigate it to avoid, you know, potential constitutional issues.”

He adds he is hopeful that moving back the date will be enough to convince NetChoice to press pause on the lawsuit. If that doesn’t work, he hopes his bill will persuade a judge to deny the preliminary injunction because the state is making a good-faith effort.

Despite the impending date change, NetChoice appears determined to press forward with a legal challenge to the regulations.

“It doesn’t matter if this law goes into effect tomorrow, or on March 1, or later; it doesn’t change the merits of our case,” Carl Szabo, NetChoice Vice President & General Counsel, said in an email.

On Tuesday, the first day of the 2024 legislative session, the nonpartisan Foundation for Individual Rights and Expression (FIRE) filed a second lawsuit claiming that the age verification requirement in the law is unconstitutional. The suit was filed on behalf of four Utahns, including a high school student, a YouTube content creator and two anti-polygamy online activists.

“This law harms the very constituency it purports to protect and unconstitutionally limits the speech of all Utahns,” said Ambika Kumar, one of the attorneys for the new suit, in a statement. “The First Amendment protects against exactly this kind of governmental overreach. We look forward to vindicating our clients’ rights by getting an order stopping this misguided law from taking effect.”

NetChoice praised the FIRE lawsuit in a press release on Tuesday afternoon.

“It is incredible to see Utahns standing up for their free speech rights online. This case is very important for policymakers to understand the impact of inflicting unconstitutional legislation on their constituents,” said Chris Marchese, Director of the NetChoice Litigation Center, in a statement. “NetChoice applauds these Utahns for their courage to stand up to government overreach.”

Update, Jan. 17, 3:45 p.m. • This story has been updated after a Senate committee passed this bill and to include a statement from NetChoice.