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Constitutionality questions are already dogging Utah’s new social media law

Gov. Spencer Cox smiles and poses for a group photo after signing two social media regulation bills during a ceremony at the Capitol building in Salt Lake City, March 23, 2023.
Courtesy Utah Senate Twitter
Gov. Spencer Cox smiles and poses for a group photo after signing two social media regulation bills during a ceremony at the Capitol building in Salt Lake City, March 23, 2023.

Utah Gov. Spencer Cox enthusiastically signed two bills that regulate access to social media, like Instagram and TikTok. He claimed the laws would “prevent the negative impacts that social media has on youth” by requiring parental consent for a minor to join any platform and making it easier for parents to sue companies for damages.

Utah is the first state in the nation to enact strict social media laws, and Cox said it is “huge” that the state is “leading on this effort.”

Nothing is set to take effect till March 2024 but questions about enforcement and constitutionality are already starting to creep up.

Despite widespread support among Republican state leaders, digital rights advocacy groups, such as the Electronic Frontier Foundation, had urged the governor not to sign the bills. Chief among their arguments: infringement on the First Amendment rights of young people.

Jason Kelley, the associate director of digital strategy at Electronic Frontier Foundation, said these bills raise many constitutional and privacy concerns that impact more than just the youth population.

For youth, Kelley said SB152 specifically hinders “the right to information and the right to free speech” by not allowing them to access social media content without parental consent.

He noted the mandate for social media companies to hand over a minor’s password to their parents also violates the constitutionally protected right to privacy. By doing so, Kelley said it could actually harm a child if they don’t have a positive relationship with their parent or guardian.

“The governor and the legislators are congratulating themselves on protecting the safety of young people. There could be hundreds or thousands [of youth] who use social media as a lifeline that will not be able to access community and education.”

For the broader public, Kelley argued these bills weaken the “right to access these websites, to access information, to share information,” by forcing users to upload personal documents to social media sites to prove their age.

It “will invariably lead some people, who are over the age of 18, to not exercise those rights because they do not wish to have their privacy infringed.”

Kelley added this law also excludes residents who do not have a government-issued ID from using social media.

Internet advocacy group NetChoice also released a statement opposing the bills. They called the legislation “unconstitutional” adding that it “will force businesses to collect more — not less — of people’s sensitive personal data, including teens.”

In January, the Utah Attorney General’s Office announced that they plan to sue social media companies for the alleged harm they cause youth and a lack of regulation.

There hasn’t been much movement on the state’s part since the announcement. In a statement to KUER, spokesperson Richard Piatt said they are “in the process of hiring outside counsel to handle any potential litigation.” Although, no litigation is pending as of now.

No social media company has gone on the record and said they plan on suing the state over the bills, either. Organizations like Electronic Frontier Foundation and NetChoice have been known to sue states over the exact policies Utah is enacting, but nothing has happened yet.

Kelley said his organization is “looking at next steps” and hasn’t made a decision on whether or not they will sue. Although Kelley is confident “there will be no shortage” of possible plaintiffs ready to fight this in court.

“We feel strongly that the law will be litigated at some point in the future, given how divisive it is, how constitutionally troubling it is, and how dangerous it is to people's free speech rights and privacy,” he said.

However, on the last day of the legislative session, Cox said he is ready to take on the looming legal battle.

“I can't wait to hold them accountable. I can't wait to get in front of a judge and jury with these media companies. It will be one of the happiest days of my life when we get to show the world what they've known and what they've been doing to our kids.”

Saige is a politics reporter and co-host of KUER's State Street politics podcast
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