Utah’s Unconstitutional Social Media Legislation Halted in Court

In 2023, the State of Utah enacted a law requiring social media platforms to verify their users’ ages and to offer certain design features to underage users. This drew fire from free-speech advocates, who protested that such mandates violate the First Amendment. Organizations like the Taxpayers Protection Alliance argued against the law on free speech grounds as well as the massive amount of government overreach and the potential for cybersecurity issues stemming from the storage of personal information collected to verify users’ ages and identities. Spooked, Utah partially replaced the law in 2024. Yet the new law – for all its tweaks – failed to excise those fundamental free speech problems that such policies, at their very roots, contain.

Now, a federal judge has enjoined Utah’s statute. Many of the arguments the opinion makes will surprise no one who has followed this strain of the law. Federal judges from Arkansas to Texas to Ohio in recent years have blocked regulations that purport to protect children online. Earlier Supreme Court precedent undergirds these rulings.

One section from the judge’s opinion notes an interesting dynamic – one paradigmatic of many modern debates surrounding children and the internet. The state, the judge writes, neglected to marshal compelling evidence to prove that social media harms minors. In some cases, the evidence presented was scant or inapt. In large part, the state seemed to take its own argument for granted. Their argument at times amounted to (as President Joe Biden might put it), “You know, the thing.”

One passage, particularly, deserves quotation at length:

“First, though the court is sensitive to the mental health challenges many young people face, Defendants have not provided evidence establishing a clear, causal relationship between minors’ social media use and negative mental health impacts. It may very well be the case, as Defendants allege, that social media use is associated with serious mental health concerns including depression, anxiety, eating disorders, poor sleep, online harassment, low self-esteem, feelings of exclusion, and attention issues. But the record before the court contains only one report to that effect, and that report – a 2023 United States Surgeon General Advisory titled Social Media and Youth Mental Health – offers a much more nuanced view of the link between social media use and negative mental health impacts than that advanced by Defendants. For example, the Advisory affirms there are ‘ample indicators that social media can…have a profound risk of harm to the mental health and well-being of children and adolescents,’ while emphasizing ‘robust independent safety analyses of the impact of social media on youth have not yet been conducted.’ Likewise, the Advisory observes there is ‘broad agreement among the scientific community that social media has the potential to both benefit and harm children and adolescents,’ depending on ‘their individual strengths and vulnerabilities, and…cultural, historical, and socio-economic factors.’”

More of the same follows. Moreover, concerning the state’s perception of social-media design features, the judge writes (emphasis added):

“Defendants generally respond to these underinclusivity concerns by suggesting a social media-specific problem arises when social media companies’ use ‘addictive design features’ in combination with ‘user-generated [content] and user-to-user interface.’ But Defendants simply do not offer any evidence to support this distinction, and they only compare social media services to ‘entertainment services.’ They do not account for the wider universe of platforms that utilize the features they take issue with, such as news sites and search engines.”

No right – not even speech rights – are limitless (particularly for children). But lawmakers must show a compelling public interest commensurate with the proposed breach of liberty.

If lawmakers want to curtail speech – as defamation or anti-incitement laws do – they first should prove the validity of their hunches and suspicions. Anything less should not suffice in courts – or in the public square. The harms of defamation and incitement are well-known.

Social media’s imprint on children remains disputed and unclear. History is an archive of pessimism and moral panic, rife with mistaken politicians who propose sweeping regulations to ameliorate supposed problems that – despite temporarily seeming dire  – prove entirely groundless.

Overeager politicians advancing unconstitutional children’s safety laws must begin to reckon with the fact that their proposals fail the demands of strict scrutiny, the relevant legal test. This realization, in turn, should mute their enthusiasm.

Besides constitutional issues, lawmakers have a much more mundane reason to rethink pursuing such laws. Their defense — which, as noted above, usually ends in injunctions – costs a lot. Lawyers must be retained, experts consulted, and time and other resources invested. Waging fruitless legal battles in defense of unconstitutional laws abuses both taxpayers’ dollars and their trust.

In America, lawmakers must pursue even worthy political goals through constitutional means. States seeking to regulate the internet should remember that.