A federal court last week sustained a First Amendment challenge to a Utah law aimed at addressing the use of social media platforms by minors, holding that the law’s proponents failed to demonstrate that the law served a compelling interest or was narrowly tailored.

In NetChoice v. Reyes, the U.S. District Court for the District of Utah wrote that the “Utah Minor Protection in Social Media Act Central Coverage Act” (the “Act”), which was set to go into effect on October 1, “imposes unjustified, content-based restrictions on social media companies’ speech” and “facially violates the First Amendment.” NetChoice, LLC v. Reyes, No. 2:23-CV-00911-RJS-CMR, 2024 WL 4135626, at *8 (D. Utah Sept. 10, 2024). The Court considered two challenges to the Act: one by NetChoice, LLC, and the other by individuals and the Utah Youth Environmental Solutions (the “Zoulek Plaintiffs”). Though the Court found that the Zoulek Plaintiffs failed to sufficiently allege standing—the Act regulates social media companies and not social media users—the Court held that NetChoice had associational standing. Id. at *7, 20.

In its challenge, NetChoice brought a motion for preliminary injunction against the Act. The Internet company trade association argued that the Act was facially unconstitutional because its “Central Coverage Definition” imposed unjustified, content-based restrictions on social media companies’ speech.[1]

In considering the challenge, the Utah federal court held that NetChoice met the elements for a preliminary injunction under Federal Rule of Civil Procedure 65, most notably that the group was substantially likely to succeed on the merits of the claim that the Central Coverage Definition rendered the law unconstitutional. Per that provision, “social media companies” were defined as “entit[ies] that own[] or operate[] a social media service” and a “social media service” as “a public website or application” that displays content that is primarily generated by account holders; permits an individual to register as an account holder and create a profile that is visible to the public other users; connects account holders to allow users to interact socially with each other within the website or application; and more.

The Act required those social media companies to, among other things, implement age verification systems for minors and disable certain features that prolong user engagement (such as autoplay). Companies were also required to implement default privacy settings with specific restrictions for minors’ accounts. Violations of the Act could result in civil and administrative penalties of $2,500 per violation.

The Court determined that the Act’s Central Coverage Definition drew facially content-based distinctions between subjects of speech, thus the Act was “presumptively unconstitutional and may be justified only if the government proves that [it is] narrowly tailored to serve compelling state interests.” Id. at *11. The Act failed strict scrutiny because the defendants failed to meet their burden of demonstrating that the interest in safeguarding the well-being and privacy of minors in the state was compelling. As the Court held, the interest “[fell] short of the First Amendment’s demanding standards.” Id. at *12.

As for the narrow-tailoring analysis, the defendants failed to show that the Act was the least restrictive option for the state to accomplish its goals, with the Court’s pointing to parental controls as an example. “While Defendants present evidence suggesting parental controls are not in widespread use, their evidence does not establish parental tools are deficient,” the Court held.  Id. at 14. The Court also highlighted that the defendants had failed to demonstrate that requiring social media companies to compel minors to follow certain requirements for updates would meaningfully reduce the amount of time they spent on social media platforms. Finally, the defendants did not show the Act wasn’t underinclusive when judged against the state’s interests in protecting minors, nor that the Act wasn’t seriously overinclusive.

Interestingly, the Reyes Court didn’t engage in a robust “overbreadth” analysis (avoiding entirely the words “overbroad” and “overbreadth”). Instead, in addressing the U.S. Supreme Court’s recent “overbreadth” decision in Moody v. NetChoice, LLC, 144 S. Ct. 2383, 2397 (2024), the Reyes Court reasoned in a footnote, “With respect to the scope-framing Central Coverage Definition, however, the Moody questions are easily answered. There is no dispute about who and what the Act regulates because the parties agree the Act’s operative provisions, only apply to ‘social media companies’ providing ‘social media services’ to minors…. Likewise, there is no dispute ‘about how the First Amendment applies to different websites or regulatory requirements.’” Reyes, 2024 WL 4135626 at *9 n. 92 (citation omitted).

We’ll continue to monitor the Reyes and Moody cases; these vital First Amendment issues are likely to appear before the U.S. circuit courts and the U.S. Supreme Court again, perhaps in the not-too-distant future.

[1] NetChoice also alleged the Act violated the right to due process under the Fourteenth Amendment and raised other arguments under the First Amendment, but because NetChoice showed it was substantially likely to succeed on its claim regarding the Central Coverage Definition, the Court did not reach the remaining First and Fourteenth Amendment claims.