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Desperate to Justify Unconstitutional Social Media Law, Utah Officials Blunder Through False Equivalencies
Surprise: Different Things Are Different!
Earlier this year, the Utah legislature passed a pair of bills regulating social media—for the children, of course. And like so many “for the children” bills (and tech bills, for that matter), these were the product of a rushed, haphazard legislative process more aimed at doing something than doing something right. Among other things, Utah law will (when these provisions go into effect next year) require social media platforms to verify the age of each Utah user,1 and obtain parental consent for any user under the age of 18.
Sensing that the Utah legislature had come down with the highly-contagious First Amendment Amnesia, I decided to remind them that this somewhat important constitutional limitation exists. Joined by several First Amendment and technology law scholars, I (on behalf of TechFreedom) wrote to Utah Governor Spencer Cox explaining two big First Amendment problems with the legislation:
Minors have First Amendment rights which can only be limited more so than for adults in very narrow and limited circumstances (almost always relating to sexual materials). And conditioning the exercise of those rights on prior parental permission is the sort of thing that the Supreme Court said “must be unconstitutional.”
Age verification violates the First Amendment rights of adults, too. The Supreme Court and the lower courts have consistently held, for 25 years now, that forcing websites to verify users’ identities infringes on the First Amendment right to access lawful content (and speak) anonymously online.
In the days leading up to the bill signing, I pressed Governor Cox on these issues. His response did not inspire confidence that he read the analysis, much less understood it: “You are wrong,” he tweeted with nothing to back it up. “See you in court.”
I would have to wait until the next day to hear exactly why he thought I was wrong. At a press conference, Cox revealed his Grand Theory of My Wrongness: all the courts have gotten it wrong (veering perilously close to Popehat’s Trope Nine). I suppose you can’t exactly be expected to cite precedent when your argument amounts to “nu uh.”
Perhaps sensing the feebleness of “I am right and all the courts are wrong,” Cox started playing the crowd-pleasers:
“There’s no doubt there’s going to be legal challenges. The same type of legal challenges that we saw with big tobacco. The same type of legal challenges that we saw with Big Pharma and opioids.”
Except it won’t be the “same type of legal challenge” at all—because neither of those things involved speech. There’s an entire essay to write about the inanity of comparing addictive physical substances to communications platforms, but suffice it to say for now that these are just…not the same things at all.
“A good example would be to say that we have to allow 12 year-olds to buy AR-15s. Even the most pro-gun lobby doesn’t believe that we have to let 12 year-olds buy AR-15s. And yet, the Constitution guarantees a Second Amendment right to Americans. I believe it’s similar. This is something that is killing our kids and I’m being told by the companies and a few ‘First Amendment lawyers’ [N.B. yes, he really did the air quotes] out there that you have no choice. You have to let the kids die.”
It takes a special amount of depravity (and dishonesty), in this age of constant headlines about school—and other—shootings, to claim that social media is “killing our kids” just like guns.
Admittedly I don’t examine many death certificates, but I’m not sure any medical examiner has ever written “social media” in the “cause of death” section. Traumatic injuries from gunshot wounds, on the other hand… And not for nothing, it doesn’t really seem like prohibiting minors from purchasing guns is preventing them from killing others with them, or being killed by them. In any event, no, things that shoot projectiles at deadly velocities are absolutely nothing like social media platforms where people go to communicate with each other.
It’s also different because—and I know this will be a shock—the First and Second Amendments are completely different things, each with their own distinct jurisprudence.2
Historically, Second Amendment jurisprudence has grappled largely with the question of what it even protects in the first place. Thus, the fundamental question in Heller was whether keeping a handgun in one’s home for personal (rather than militia-related) defense is conduct protected by the Second Amendment at all. Drawing in large part on historical analysis, the majority adopted an originalist approach3 and answered in the affirmative.
That first-step question of “is the conduct protected by the Second Amendment” is what tripped up a later challenge to the federal ban on handgun sales to anyone younger than 21. Reviewing the historical record, the Fifth Circuit (the first federal appellate court to adopt the “individual right” approach, no less) noted a longstanding tradition of “targeting select groups’ ability to access and to use arms for the sake of public safety,” and found that “the conduct at issue falls outside the Second Amendment’s protection.” (Emphasis added).
So yes, Governor Cox, the Second Amendment guarantees certain rights. But you failed to consider that banning 12 year-olds from buying AR-15s may be permissible not in spite of the Second Amendment, but rather because that’s not conduct protected by the Second Amendment at all.
In contrast, First Amendment jurisprudence is far less exclusive, uncertain, or variable. We know what categories of speech are excluded from its protection—and that they show no signs of changing or expanding. And there is no open question as to whether minors are afforded First Amendment rights: we know that they are. Here are some other things that we also know:
“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.” (Brown v. Entertainment Merchants Association)
Supreme Court precedent “provide[s] no basis for qualifying the level of First Amendment scrutiny that should be applied to [the Internet].” (Reno v. ACLU)
Government restrictions on access to social media burdens users’ exercise of First Amendment rights. (Packingham v. North Carolina)
In other words, unlike prohibiting a 12 year-old from buying a gun, it is well-established that the Utah legislation burdens First Amendment rights. And unlike gun ownership, expressive rights are not historically limited to “responsible citizens” in order to protect “public safety.” Yes, speech can cause harm at times. But the difference between speech harms and bullet harms is one of (extreme) kind, not degree. After all, nobody has ever walked into a school or a mall and talked (or social media-ed) people to death. The respective bodies of First and Second Amendment jurisprudence reflect this difference, and Cox’s comparison is an exercise in frivolousness.
It’s also worth briefly noting in choosing a 12 year-old for his comparison, Cox unintentionally demonstrated just how little he understands the issue. There’s actually a reasonable argument that very young children are particularly vulnerable and require more protection—and as a result, perhaps have more limited First Amendment rights. Twelve years old and younger is, in fact, where Congress drew the line with COPPA (which is why virtually no social media platform allows users under 13 to join as it is).
But Utah would treat an older teen—who in a year or less will be able to vote,4 go off to war, etc.—the exact same as that vulnerable young child. Whatever reasonable arguments might be made for protecting pre-teens, they evaporate as children turn into teens. Holding that an Indianapolis ordinance requiring minors be accompanied by a parent in establishments that operate violent video game machines, Richard Posner wrote for the Seventh Circuit:
Now that eighteen-year-olds have the right to vote, it is obvious that they must be allowed the freedom to form their political views on the basis of uncensored speech before they turn eighteen, so that their minds are not a blank when they first exercise the franchise. And since an eighteen-year-old's right to vote is a right personal to him rather than a right that is to be exercised on his behalf by his parents, the right of parents to enlist the aid of the state to shield their children from ideas of which the parents disapprove cannot be plenary either. People are unlikely to become well-functioning, independent-minded adults and responsible citizens if they are raised in an intellectual bubble.
Given how much of our lives increasingly takes place on social media, these concerns are even more pressing here. If Utah actually cared about the wellbeing of minors, they would have taken the time to do something more careful, something that might even have survived constitutional scrutiny. That they opted for a broad prophylactic speaks volumes.
Last week, Utah State Senator Mike McKell, who wrote the age verification/parental consent bill (and who is Spencer Cox’s brother-in-law), jumped in with a whataboutism of his own:
At the outset, I am unconvinced that McKell keeps very close track of what First Amendment advocates are or are not protesting, for two reasons:
He doesn’t seem to really care about the First Amendment in the first place. Recall that in 2021, McKell was the author of an unconstitutional law regulating content moderation, which he—not unlike Cox above—said he looked forward to defending in court (i.e., wasting taxpayer money) before Cox vetoed it.
In any event, as far as “gotchas” go, this one is rather flaccid.
Library cards allow holders to borrow materials from the library, which makes the borrower responsible for things like late fines and replacement costs. And most contracts are unenforceable against minors. So when libraries do require parental consent for a minor to receive a library card (and many in fact do not require it5 except for very young children), it is because they want a person to hold legally responsible for any incurred liabilities. An attorney for the Western New York Library Resources Council spells it out:
Since the relationship of a library to a patron is (among other things) contractual, and in New York a person (generally) cannot be held to a contract until they are 18, any terms a library wants to be able to enforce on a minor must require legal consent of a parent or guardian...and in some cases, the contract really is just with the parent or guardian .
Obviously, nobody is checking materials out of a social media platform. And that underscores the fundamental difference between parental consent for library cards vs. social media:
Requiring parental consent for a library card only impacts borrowing activity, not access to the library overall. Minors are free to walk in to the library, read materials, and speak with friends—all without having a library card (or parental consent). The First Amendment right to speak, read, and receive information is not substantially burdened by a requirement that only restricts when library property may be physically taken out of the building.
Utah’s social media law, on the other hand, is expressly intended to burden those rights by conditioning any social media participation by a user younger than 18 on prior parental consent. If Mike McKell thinks that First Amendment advocates (or courts) would find a parental consent provision for merely using a library unproblematic, he has sorely miscalculated his attack. And if he truly believes that these are comparable things, perhaps he ought to spend some more time in a library reading about the First Amendment.
It’s understandable that Cox and McKell are reaching—the law does not bode well for their endeavor. And it bodes even worse if these are the best arguments they’ve got.
Really every user everywhere, because how exactly is a platform to know which users “reside in Utah” without verifying who they are?
If Trope Three is "Not all speech is protected," we'll call this Trope 3.5: “Not all constitutional rights are unlimited.”
Set aside whether or not you think the majority’s historical analysis and application of originalism was intellectually rigorous or consistent.