Critics say Utah’s latest social media bills are unconstitutional

TikTok says it is already trying to protect kids online.

Utah lawmakers unveiled a pair of bills making wholesale changes to the sweeping social media regulations passed by the Legislature last year. Sponsors say the legislation will protect children from the perceived negative impacts of social media on kids, while critics argue the efforts still conflict with constitutional protections for free speech and federal law.

And TikTok, a popular video-sharing app, told The Salt Lake Tribune it is already implementing safety measures aimed at protecting minors.

If the new legislation is passed, Utah parents would be able to sue social media companies if their children experience an “adverse mental health outcome” from using a platform.

Last year, lawmakers and Gov. Spencer Cox touted being the first state in the nation to approve regulations on how Utahns under 18 use social media, claiming the rules were needed to protect children. The legislation blocked minors from using large social media platforms without permission from a parent or guardian, limited the hours of the day they could access those platforms, and required an age verification for all users. Social media companies that violated the law could face crippling fines from the state.

Those regulations drew a pair of federal lawsuits claiming the laws violated the Constitution and existing laws. In response, lawmakers rushed to pass legislation pushing back the effective date of the new regulations by seven months to Oct. 1, 2024, to buy time to approve the revamped legislation unveiled on Monday.

In a news release Tuesday, Sen. Mike McKell, R-Spanish Fork, said there’s an urgent need to protect Utah’s children from big tech companies.

“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,” McKell said in Monday’s release.

Gov. Spencer Cox applauds after signing two social media regulation bills during a ceremony at the Capitol building in Salt Lake City on Thursday, March 23, 2023. Cox signed a pair of measures that aim to limit when and where children can use social media and stop companies from luring kids to the sites. (Trent Nelson/The Salt Lake Tribune via AP)

SB194 and HB464 retain many elements from last year’s legislation but use different mechanisms that lawmakers believe will help them survive a legal challenge.

One of the most significant changes in the new legislation is eliminating a ban on minors using social media without permission from a parent or guardian. Instead, SB196 from Sen. Mike McKell, R-Spanish Fork, enacts strict regulations on how users under 18 years old interact with social media. The new legislation would also require platforms to limit the kinds of accounts minor can message or share content with, while also putting guardrails on privacy and what types of data the platforms can collect and share about these users.

There’s still a requirement for social media companies to implement an age verification system for all Utah-based users. Whichever system a platform employs must be 95% accurate, which McKell says can be accomplished with existing technology.

‘We work hard to support teens’

Critics of last year’s sweeping social media ban — including social media companies and a group suing over the legislation — are not persuaded by the updated regulations.

James Czerniawski, senior policy analyst for Americans for Prosperity, said the bills may be well intended but still had “fundamental flaws” that were “too massive to ignore.”

“They trample on the First Amendment, jeopardize individual privacy, and open a Pandora’s box of cybersecurity concerns,” Czerniawski said in an email to The Tribune. “These bills will do little to protect children online while simultaneously undermining core civil liberties afforded to every American.”

NetChoice, the group that sued to block the regulations on behalf of several social media companies, said Monday that the updated proposals had still not addressed the concerns that prompted their initial lawsuit.

“Unconstitutional laws help no one. Despite going back to the drawing board, Utah is still not on the right side of the Constitution. We look forward to a court hearing our case,” NetChoice Litigation Center Director Chris Marchese said in a statement.

Social media companies who would be subject to the updated rules pushed back on Utah’s efforts. TikTok, which Utah recently sued in state court, said they already have implemented many features to protect young users.

“We work hard to support teens’ well-being on TikTok with an automatic 60-minute time limit for users under 18, restrictions on direct messaging, parental controls for teen accounts, and more, to safely navigate the digital experience,” a TikTok spokesperson said in a statement to The Tribune.

Meta, which owns Facebook and Instagram, declined comment on Monday, instead pointing to the legislative framework for regulations they favor.

“While some US states have put proposals and new laws on the table, they often fall short. Setting up parental consent with the hundreds of apps teens use by sharing your ID or credit card, or even your child’s ID each time, is cumbersome for parents and raises privacy concerns,” wrote Antigone Davis, Meta’s vice president of safety, in a Medium post last month. “Furthermore, laws that hold different apps to different standards in different states will leave teens with inconsistent online experiences.”

Regulating ‘engagement-driven design elements’

Another new element unveiled on Monday requires social media companies to turn off features that lead to increased user engagement for users under 18. Those include auto-playing videos, continuous scrolling to see new content, push notifications and algorithmic content curation for users.

“If policymakers want to design consumer products and applications, they should quit their jobs and become full-time app developers,” Taylor Barkley, Technology and Innovation Director at the Center for Growth and Opportunity at Utah State University, says. “They want to regulate the nitty gritty of what makes these applications useable. These new proposals go so far that they would make these platforms very unpleasant to use.”

Both bills also include a series of “legislative findings” that assert the state has an interest in safeguarding the well-being of minors and that social media plays a significant part in their declining mental health.

Another sponsor of the new legislation, Rep. Jordan Teuscher, R-South Jordan, says that part of the bill could help the state fend off a legal challenge to the revised regulations.

“One of the bars that we have to overcome in legislating when we’re looking at First Amendment issues is whether there is a compelling state interest,” he said. “We’re trying to tell the court explicitly why we’re passing this. Here’s the intent behind it. Here’s what we’re seeing in our state and why we’re passing this law.”

McKell cited a barrage of harrowing statistics from “peer-reviewed publications” to justify state intervention and to back up the claims of the damage caused by social media.

“Nearly half of teens 13 to 17 say using social media makes them feel worse,” McKell said after the bill language was released. “Sixty-three percent of Utah parents were concerned about social media impacting their child’s mental health, 18% of Utah youth seriously considered suicide within the past year, and 38% of teens are getting less than eight hours of sleep.”

While Teuscher and McKell said much of their motivation for the legislation is based on a 2023 advisory from the Surgeon General and the Centers for Disease Control and Prevention about social media’s impact on youth mental health, that advisory concluded social media use may be detrimental for some teens but did not establish a causal link between the two.

Like the previous version, the revamped legislation creates a process where parents can sue social media companies for the harm inflicted on children. Last year’s bills allowed for a lawsuit if a child became addicted to a particular platform. Under the revised bill, parents can sue for a minimum of $10,000 per incidence if a child has an “adverse mental health outcome” as a result of excessive use of social media.

“If you’re a social media company that curates content using algorithms and uses what we’re calling ‘engagement-driven design elements’, we’ve found those are causing mental health issues for minors,” Teuscher says.

If a parent sues, the bill says courts must assume a social media platform causes harm to children unless the company can demonstrate they complied with state regulations and other steps, including limiting use by minors to just three hours per day.