Rather than defend a clearly unconstitutional measure passed to "protect" kids from social media, the government of Utah intends to repeal the law.
Last year, Utah became the first state to pass a law limiting minors' social media use to those who had parental consent and requiring platforms to provide a way for parents to access their kids' accounts. It kicked off a wave of similar measures in statehouses across the country—laws that would require anyone using social media to prove their age through such methods as submitting biometric data or a government-issued ID.
Now that it faces a pair of challenges in federal court, the state has a new stance: "Psych! We didn't actually mean it!"
"They know it's unconstitutional. They know it's pure grandstanding and culture warrioring," writes Techdirt editor Mike Masnick. "And they don't want to face the music for abusing the rights of the citizens who elected them to support the Constitution, not undermine it."
Utah's parental consent for social media law (S.B. 152) was scheduled to take effect in March, along with a law (H.B. 311) to create liability for social media companies that "addict" kids. Both laws were challenged in December by the tech industry association NetChoice.
Then, earlier this month, the Foundation for Individual Rights and Expression (FIRE) sued on behalf of four Utah residents—including Hannah Zoulek, a teenager who identifies as queer—to stop S.B. 152. "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," Zoulek told FIRE.
The FIRE lawsuit is still in its earliest stages, but the NetChoice lawsuit was already moving forward. A hearing on NetChoice's motion for preliminary injunction was set for February 12.
Then, on January 19, Utah lawmakers voted to postpone the law's effective date until October 1, 2024. And Utah officials asked the court to cancel the February hearing, given that the effective date had been postponed "and the Legislature is likely to repeal and replace the law during the current legislative session."
The state said in a January 19 motion that the law "is likely to be repealed in the next few weeks."
Last week, Judge David Barlow agreed to cancel the hearing about halting enforcement of the law, "given the delayed implementation…and given the possibility that the Act will be altered during Utah's legislative session." A meeting to make an updated schedule is slated for mid-March.
For now, that leaves social media companies in limbo.
Utah officials said in the January 19 motion that they "anticipate" the law being amended or replaced soon. But that's not a given, and for now the new rules are still scheduled to take effect this fall. Should tech companies prepare for that? For something similar? Nobody knows.
The state does "not even dispute the prospect of irreparable harm," noted NetChoice in a reply opposing the amended schedule. "Rather, Defendants argue that the irreparable harm is not 'imminent.'"
"NetChoice's members still need certainty about their compliance obligations well before the Act takes effect," the group stated:
The prospect that the Legislature might pass some legislation at some point that has some effect on this litigation is not enough to derail briefing that is well underway and set for hearing. This legislation has not even been introduced. Its terms are not public knowledge. Nor are its constitutional flaws or its overlap with the Act at issue here (if any). In any event, no one can make any guarantees about the outcome or timing of the legislative process. In the meanwhile, NetChoice's members still face an active choice between incurring unrecoverable compliance costs with an unconstitutional law or confronting potential enforcement actions when the Act takes effect in October.
If all of this represents Utah recognizing that its social media statute is an unworkable, unconstitutional, privacy-infringing mess…great! But it also highlights a fundamental issue with politics these days: lawmakers who are more interested in passing legislation that makes a statement than passing legislation that actually works.
We've seen this recently with tech bills, measures meant to curb abortion access, laws meant to defy "wokeness," and other restrictions on books, performances, and academic subjects that deal with race, sex, or gender themes. Politicians often seem more intent to signal anger or disgust—and capture the anger and disgust of constituents—than to make changes that pass constitutional muster.
Sometimes this may just be cluelessness, and other times it may be deliberately designed to test the limits of protected rights. But there are also situations—like this one in Utah, or an Ohio town's speech-restricting statute against aiding or abetting abortion—where authorities simply back down when challenged, suggesting they know this was never going to fly and basically just passed it as a P.R. move.
Hating on Big Tech is an especially good way to garner positive attention these days. And saying you're doing something to "protect kids" is a time-worn way to get props.
Besides, lawmakers are as susceptible to moral panic about new technology as anyone else, making them vulnerable to pleas to "Do something!" even if they know—or at least should know—that the Constitution frowns on it.
Ultimately, this winds up wasting time and a lot of taxpayer money. But as long as that doesn't actually translate to negative consequences for the officials whose support these laws, there's little downside for them to keep trying.
Social media age-check measures like Utah's "violate the First Amendment…rob users of anonymity, pose privacy and security risks, and could be used to block some people from being able to use social media at all," as the American Civil Liberties Union puts it.
Alas, whatever happens in Utah, it looks like we're going to be playing whack-a-mole with similar laws for a while.
Arkansas and Ohio passed social media age verification laws last year—the Social Media Safety Act and the Parental Notification by Social Media Operators Act, respectively—though courts have preliminarily blocked enforcement of both.
Louisiana also passed social media age verification measure last year (the Secure Online Child Interaction and Age Limitation Act), as did Texas (the Securing Children Online Through Parental Empowerment Act, or SCOPE). The Louisiana measure is supposed to take effect in July, and the Texas law is slated to take effect in September.
Similar proposals are now on the table in Florida, Georgia, and New Jersey.
And this isn't even counting the laws passed or under consideration to card people visiting porn websites.
There's also federal legislation—like the Social Media Child Protection Act and the Protecting Kids on Social Media Act—that would require nationwide age verification by social media platforms. And both at the federal and state level, proposals like these have been gaining bipartisan support. For many Democrats and Republicans alike, free speech is out and childproofing the internet is in this year.
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