• by Wendy Davis , Staff Writer @wendyndavis, February 16, 2023

In the 15 months since former Facebook executive Frances Haugen told Congress that the company prioritizes profits over teens' well-being, federal and state lawmakers have attempted to pass laws regulating how social media companies deal with teen users.

Last year, for instance, California passed legislation requiring social media companies likely to be accessed by minors to prioritize their “best interests” and “well-being." That measure is currently facing a challenge by the tech industry, which argues the bill violates the First Amendment.

Now, despite the unsettled controversy over the California law, some federal and state lawmakers are pushing for bills that are even more restrictive.

For instance, Senator Josh Hawley (R-Missouri) on Tuesday introduced a bill that would ban minors under the age of 16 from social media.

“We can protect kids when they are most vulnerable by keeping them off social media during their formative years,” Hawley wrote in Thursday's Washington Post.

And in Utah, lawmakers in the Senate on Wednesday passed a bill that would prohibit social media companies from allowing users under 18 to maintain or create accounts, without parental permission. That measure, which was sent to the Utah House on Thursday, also requires social media platforms to verify the ages of all users.

Other states, including Texas, are considering similar laws, but the bill in Utah is advancing the fastest.

On Thursday, the think tank TechFreedom and a group of law professors are warning Utah Governor Spencer Cox that the proposed restrictions “will violate the First Amendment rights of both minors and adults.”

“Minors possess significant First Amendment rights,” TechFreedom and the law professors write in a letter sent to Cox on Thursday.

“Utah lawmakers are right to be concerned about the well-being of young Utahns, but they cannot run roughshod over youths’ civil liberties in the name of protecting them,” the letter continues.

TechFreedom and the academics also point out that the law will violate adults' free speech rights by requiring social media platforms to verify everyone's age -- effectively ending online anonymity.

“Today users can create pseudonymous social media accounts by providing nothing more than an email,” the letter says. “They can use that account to comment publicly and message privately.”

The authors add that the Utah bill would mean that users “could no longer trust their pseudonyms to protect themselves, especially from government actors and powerful figures who would seek to stifle criticism.”

What's more, the restrictions would inevitably extend beyond Utah's borders, because the only way for social media platforms to determine who lives in the state is to demand identification from everyone, the letter says.

“Assumptions based on IP addresses would be unreliable, sweeping up visitors from out of state and missing users who use a VPN service or create an account while outside Utah -- or even those who might live close to the state’s border and whose phones connect to cell towers in a neighboring state,” TechFreedom and the academics write. “Utah cannot impose an unconstitutional age-verification mandate on its own citizens, let alone on the entire country.”

The authors also note that the Supreme Court has already ruled that minors have First Amendment rights to access non-obscene material.

In 2011, the Supreme Court voted 7-2 to strike down a California law that banned the sale of violent video games to minors, without parental consent.

“No doubt a State possesses legitimate power to protect children from harm ... but that does not include a free-floating power to restrict the ideas to which children may be exposed,” Justice Antonin Scalia wrote for the majority.

“Whatever the challenges of applying the Constitution to ever-advancing technology, the basic principles of freedom of speech and the press, like the First Amendment’s command, do not vary when a new and different medium for communication appears,” Scalia added.