10th Circuit Weighs Constitutionality of Utah Age-Verification Law
The 10th U.S. Circuit Court of Appeals grilled parties on what it means to be a content-based restriction when it comes to social media during a hearing Thursday in NetChoice v. Brown. The case centers on the constitutionality of SB-194, which requires social media companies to implement an age-assurance system to determine whether account users in Utah are minors (see 2505270050).
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If users are minors, the Utah Minor Protection in Social Media Act requires maximum privacy settings by default, as well as parental controls. NetChoice has argued the law breaches people’s privacy and impedes minors’ ability to engage in constitutionally protected speech (see 2312180054).
Though Erin Middleton, assistant solicitor general in the Utah attorney general’s office, argued that the question in case 24-4100 is “whether the definition of social media in … [the] act is content neutral,” Judge Paul Kelly appeared skeptical.
“How could we possibly do that, given all the different platforms,” since “the whole spectrum of platforms, it seems to me, has to be examined?”
But Middleton responded that, “as far as determining whether or not the definition is itself content neutral, I think that that can be done based off of the text of the statute.”
Chief Judge Jerome Holmes asked questions about how the Act functioned, such as what it means for the law to require limiting the visibility of minors' social media accounts.
Middleton said NetChoice is that the Act targets entities that display lists of connected users, which counts as content-based activity. But the state argues that since “there is no content analysis that's required” to determine if that list exists or not, it's not content-based.
It “strikes me as [it] could be viewed as a distinction ... between whether this particular entity displays a list of people who are socially connected," Holmes said. “Why isn't there some content overlay to that?”
But Middleton reiterated it “simply looks to whether or not there's a function enabled” that would display a list of user connections, and “does not reflect any sort of content discrimination as far as message topic or idea.”
But those two things are “not necessarily binary,” Holmes shot back, since there could be “a situation where you could have functional structures in place that actually capture content.”
Scott Keller, a Lehotsky Keller lawyer representing NetChoice, agreed with Holmes' questioning. But also, the trade association argued that the law would fail even intermediate scrutiny, so court analysis beyond whether SB-194 is content-based is required.
Holmes pointed out that further analysis wasn't required by the appeals court, and that once a decision is issued on whether the Utah law is content based, it could be remanded back to the district court.
Judge Nancy Moritz agreed, noting that the district judge had left “a bit of a stray comment” in her opinion in the case indicating that the law “wouldn't even meet intermediate scrutiny.”
Keller said that “the easiest way that this Court can resolve all of this right now is by finding that this is a content-based restriction of speech.”
But “why is it necessarily content-based just because it instrumentally addresses users?” Holmes asked. “Why is it targeting anything” if users can “talk politics, they could talk sports, they could talk business [all] within the scope of the Act?”
Keller posited that the “social interaction” aspect of the statute means it refers to interactions with “other users on the website,” but noted that “if there's any vagueness about this, I don't think you can hold that against the websites.”
But Moritz asked if “there [was] anything besides that really makes or breaks [NetChoice’s] argument?”
“The exemptions of email, cloud and document collaboration” in the law “bolsters our argument that what ‘interacts socially’ is trying to get at,” which makes “a distinction of professional speech versus social interaction,” Keller responded.
In her rebuttal, Middleton said that “there's simply no basis in the act for that,” noting that “email [and] cloud storage are very structurally different sites than a social media site, and communications on either of them could be about anything.”
Throughout the argument, Holmes reiterated: “I’m just the guy asking questions, I'm not agreeing or disagreeing with anything right now.”
NetChoice challenged Utah in the U.S. District Court for Utah in March 2024 over SB-194. In September 2024, the district court granted a preliminary injunction against the law on First Amendment grounds (see 2409110025). The attorney general appealed the case to the 10th Circuit the next month (docket 2:23-cv-00911) (see 2410110031).
Two amicus briefs filed in June supported the block of the Utah law on First Amendment and privacy grounds (see 2506040054). NetChoice has also argued rulings in Computer & Communications Industry Association and NetChoice v. Uthmeier and NetChoice v. Fitch as reasons for the Utah law to be halted (see 2506200022 and 2506300069).