• by Wendy Davis  @wendyndavis, December 18, 2023

The tech industry organization NetChoice on Monday sued to block a Utah law that requires social media companies to verify users' ages, prohibits those companies from allowing minors under 18 to have accounts without parental permission, and bans the companies from serving ads to minors.

“The First Amendment prohibits restricting access to protected expression, no matter how well-intentioned the government might be,” NetChoice writes in a lawsuit seeking a declaratory judgment that Utah's Social Media Regulation Act (SB 152) is unconstitutional and blocking enforcement.

The law, signed in March and slated to take effect next year, also forces the companies to allow parents to access all content and interactions of their underage children's accounts.

The Utah law is one of several recent measures aimed at regulating social-media companies.

A similar law in Arkansas was recently declared unconstitutional, as was a California statute that would have required online companies likely to be accessed by users under 18 to prioritize their “best interests” and “well-being.”

NetChoice argues the Utah law should be struck down for several reasons, including that it violates the First Amendment by placing “multiple restrictions" on minors’ and adults’ ability” to access social media sites.

“The act restricts who can express themselves, what can be said, and when and how speech on covered websites can occur,” the group writes in its complaint, brought in U.S. District Court in Utah. “Worse, the act treats all minors the same, ignoring the differences between the websites’ youngest users and 17-year-olds.”

NetChoice adds that the law's “categorical ban on all advertising” is unconstitutional, writing that websites have a First Amendment right to show ads, and minors have the right to view ads.

“The state cannot demonstrate what purported problem this ban responds to, how the ban is necessary to solve the purported problem, or why the existing and plentiful choices of private tools available to parents are insufficient to address any purported problem,” the group argues.

The group also notes that courts historically have struck down prior attempts by lawmakers to restrict minors' ability to access books, movies and other content.

“Governments and the public have considered regulating dime novels, movies, radio serials, comic books, music videos, and video games, among many others. But courts have routinely declared those laws unconstitutional,” NetChoice writes.

For instance, in 2011 the Supreme Court invalidated 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 seven-member majority in that case.

“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.