FIRE Files Lawsuit Challenging Utah’s “Social Media Regulation Act”

Some of the arguments in FIRE’s lawsuit will ring familiar to those who have followed the progress of the Free Speech Coalition’s lawsuits challenging similar age verification mandates passed by state legislatures around the country directed at adult websites. To hear the plaintiffs in the FIRE lawsuit tell it though, the SMRA may be significantly more constitutionally flawed than those porn site-specific measures.

“In Utah, government gatekeepers are restricting social media access through one-size-fits-all legislation that violates the rights of all Utah residents and ignores the way people use technology in the real world,” FIRE said in a statement announcing the lawsuit. “Want to hop on Facebook? Facial recognition. Comment on Goodreads? We’ll need the last four digits of your social. Pinterest? ID, please.”

As FIRE noted, the SMRA “requires every social media user in the state to verify their age,” not just those Utah residents who happen to be minors.

“The law second-guesses Utah families’ judgments about how to manage young people’s social media use, imposing a heavy-handed state dictate riddled with unconstitutional restrictions,” FIRE added.

The plaintiffs in the case include Hannah Zoulek, “a queer-identifying high school student who uses they/them pronouns and fears the law will chill Utahns’ speech online,” a YouTuber who “posts videos about cooking and mental health” and “two online advocates who escaped a polygamous community and now provide resources to those in similar situations.”

“This law will require me and my mom to give sensitive personal information to major tech companies simply to access platforms that have been an integral part of my development, giving me a sense of community and really just helping me figure out who I am as a person,” Zoulek said. “Growing up already isn’t easy, and the government making it harder to talk with people who have similar experiences to mine just makes it even more difficult.”

In their complaint, the plaintiffs concede there may be legitimate concerns involving minors’ use of social media, but strongly assert the SMRA is the wrong way to address any potential harm being done to minors via their use of social media.

“The idea that some types of social media use by some minors under certain conditions can adversely affect some segment of this cohort is no basis for imposing state restrictions on all social media use by all minors — just as the State does not (and cannot) keep all books under lock and key because some are inappropriate for some children,” the plaintiffs argue. “But such overreach typifies how lawmakers historically have sought to regulate new media forms in the name of protecting the young. Whether dime novels or “penny dreadfuls” in the nineteenth century, moving pictures in the early twentieth century, comic books in the 1950s, or video games at the dawn of the twenty-first century, the response to these successive moral panics has been largely the same: legislatures pass vague and broadly worded speech restrictions that infringe basic First Amendment rights.”

In fact, as the complaint adds, “such laws have generated much of modern First Amendment jurisprudence.”

“The Utah Social Media Regulation Act is the latest in this pantheon of well-intentioned but misguided laws,” the plaintiffs add.

The complaint asserts the SMRA violates the First Amendment, the Due Process Clause of the Fourteenth Amendment, and the Commerce Clause of the United States Constitution. The plaintiffs also contend the SMRA is preempted by Section 230 of the Communications Decency Act.

The 30+ page complaint is loaded with examples of minors using social media for important purposes, ranging from political activism to seeking supportive communities – including support their parents might not want them to seek, or be inclined to approve of as a reason for granting their minor children permission to use social media, as the SMRA’s age verification component requires.

Noting that “social media provides particular benefits to marginalized and at-risk youth,” the complaint observes many “teens from abusive homes have used social media to seek support and, if necessary, escape to relatives, friends, or shelters.”

“Teens have used social media to identify and locate domestic violence shelters and send messages to relatives or friends to seek help,” the plaintiffs add. “In certain FLDS (Fundamentalist Church of Jesus Christ of Latter-Day Saints) communities, minors have used social media to escape homes where they were being forced into polygamous marriages, or labor, or endured other forms of abuse. Social media has not only given these minors a lifeline to contact the outside world, but also has shown them that relatives and friends who have fled the community are living healthy and productive lives — in contrast to the community’s messaging that those who leave are condemned to lives of poverty and suffering.”

Legally speaking, the plaintiffs contend that among the SMRA’s defects, it treats Utah’s minors as a one-size-fits-all population, applying the same regulatory framework to a six-year-old as it does to a 16-year-old.

“Adolescents’ use of social media cannot be treated or regulated monolithically,” the plaintiffs argue. “Research confirms that children and adolescents are affected by social media in different ways, based on their strengths, vulnerabilities, and predispositions, and on cultural, historical, and socioeconomic factors.”

The plaintiffs also observe that it’s not as though parents are without tools to restrict and regulate their children’s social media use, provided by the apps and platforms, themselves.

“To account for these differences, parents have access to tools that allow them to monitor and control their children’s social media use. Meta, for example, enables parents to set time limits, restrict use to particular times or days, view their child’s friends or followers, and receive notifications when the minor reports an account or post. Snapchat publishes a guide for parents to promote safe social media use and provides tools that allow parents to set content controls and see with whom their children are communicating. Parents can also download applications, such as Aura, Bark, Qustodio, and FamilyKeeper, that link to their children’s devices and enable them to limit screen time; see their messages on social media; filter, block, and monitor access to certain sites or applications; set location alerts; and pause internet access. And phone manufacturers like Apple and Google offer ‘Screen Time’ and ‘Family Sharing’ controls that permit parents to manage a child’s online activities, including their use of particular applications.”

The sweeping scope of the SMRA is another problem identified in the FIRE lawsuit.

“If allowed to take effect, the Act would restrict or burden access to most websites and apps designed to foster connection among users through posting content and sharing ideas,” the plaintiffs assert. “This definition, for example, sweeps in smaller services that may not have the resources to comply with the Act’s age-verification requirements. Covered services may also include those designed for sharing educational and cultural content, like Allrecipes (for sharing recipes), Goodreads (book recommendations), and Letterboxd (film reviews). The law even extends to forums like Quora and Reddit, which primarily offer bulletin-board style information on a variety of educational topics and allow users to ask any question and receive responses.”

As plaintiffs challenging age verification mandates directed at adult websites have noted in other cases, the plaintiffs in the FIRE lawsuit note that current age verification technologies “inherently unreliable” and that there are “there are ‘straightforward workarounds’ for users determined to bypass the rules.”

“Age verification, to the extent it can ever be effective, typically requires collecting sensitive personal information, such as a government-issued ID, credit card information, or biometric data,” the complaint asserts, adding that in October, the Division of Consumer Protection “proposed a rule to implement the Social Media Act, which would require companies to use one of several prescribed age-verification methods and ensure that the chosen method ‘accurately’ identifies whether each user is a minor. The proposed methods include ‘using facial characterization or analysis’; ‘matching a [user’s] verified government-issued identification’ to the user’s face; and ‘checking a [user’s] social security number’s last four digits against a third-party database of personal information.’”

“This information ties users’ social media accounts to their identities, thus limiting anonymity online,” the complaint observes. “Age-verification methods that involve submitting official documents or social security numbers also increase the risk that those documents could be stolen or leaked. Other proposed age-verification methods—such as artificial intelligence, facial analysis, or facial recognition—pose their own transparency, security, and privacy concerns. The requirement may even conflict with other states’ privacy laws regarding the collection of data.”

There’s a good deal more to the complaint than I can adequately cover here, in what is already a very long post, having only scratched the surface of the lawsuit. The law suffers from a host of uncertainties, failing to define key terms which make it very difficult for social media companies to know whether their sites are compliant.

For example, the law prohibits a social media service from “us[ing] a practice, design, or feature” that the company “knows, or which by the exercise of reasonable care should know, causes a Utah minor account holder to have an addiction to the social media platform” – but the law offers no definition of “practice,” “design,” or “feature,” meaning this could be applied to “any choice a social media company makes in developing and maintaining its offerings,” as the plaintiff puts it.

All told, Utah’s SMRA reads like what it is – the outcome of a state legislature flailing to quell an ongoing moral panic.

“Throughout history, censorship has always been the answer to moral panics inspired by new technologies,” said FIRE Chief Counsel Bob Corn-Revere. “But censorship is the wrong response to concerns presented by new cultural phenomena, whether the printing press in the 1400s, comic books in the ‘50s, video games in the ‘90s, or social media today.”

Those previous moral panics Corn-Revere referenced above didn’t do much to slow down the proliferation of novels, comic books or video games. Here’s hoping that Utah’s SMRA proves similarly ineffective.