Utah’s social media law restricting minors’ access may fall on First Amendment grounds, but it’s still good for America.
By Jim Harper
There’s good news of a sort in recent Utah legislation meant to control minors’ access to social media, but it’s not that parenting just got easier. The failure of Utah’s Social Media Regulation Act would educate policymakers around the country at a much lower cost than if the federal government did this experiment. Court challenges may establish quickly and clearly that the government cannot condition the use of communications platforms on mandatory age verification. Doing so requires identification, which violates the First Amendment.
It only takes a little bit of thinking about administering an age requirement to see that it demands identification from everyone. Under the Utah statute, “a social media company may not permit a Utah resident who is a minor to be an account holder” without a parent’s permission. Put aside proof of parental relationships and Utah residency; both are difficult problems. The heart of the mandate is that social media platforms must get proof of “not a minor” from all users.
There’s a reason why demanding proof of a negative is regarded as unfair. A platform must require each user to negate their minor status by offering up evidence that they have been alive for more than 18 years. The statute gives a state agency leeway about how this is shown, and it may not limit the options to government IDs. But government-issued IDs, the documentary descendants of birth certificates, are the sine qua non of age verification, and the most widely held form of identification.
There may be creative ways to collect and lodge indicia of age — the future may offer cryptographic tricks that do it — but each step away from our “hard” identity documents is a relaxation in the effectiveness of the statute. Minors are a notably wily group. Perhaps Utah’s regulators will water down the age requirement such that it is constitutional and ineffective. But the statute should probably fall to a First Amendment challenge.
NAACP v. Alabama is the Supreme Court case on point. In it, the court struck down Alabama’s demand that the vaunted civil rights organization submit its membership lists as a condition of doing business in the state. “(F)reedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech,” the court wrote.
Technology has smashed civic organizing into a million shards, but it still goes on in new ways. People are organizing civic events on social media, critiquing local officials, urging attention to racial justice, and importuning elected officials. “(I)t is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters,” the Supreme Court said in the NAACP v. Alabama decision. “(S)tate action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny.”
It is scrutiny that the Utah statute should not survive because nobody can replace parents.
If Utah’s statute suggests that families with minor children are protected from social media, parents will respond in at least some degree by letting down their guard, which invites danger. That doesn’t mean each family is on its own. Let communities of parents organized around neighborhoods, school groups, churches or scouting establish rules for their children and teens. Time will tell what works best from one age and circumstance to another.
Utah’s law has other concerning aspects. It allows lawsuits with penalties of $2,500 per violation, even in the absence of harm. These penalties are similar to those in an Illinois statute passed in 2008 that seeks to prohibit companies from collecting biometric data, by means such as fingerprinting or retinal scans. The Illinois Biometric Information Privacy Act provides for penalties of $1,000 to $5,000 per violation.
A recent Illinois Supreme Court ruling exposes the White Castle burger chain to as much as $17 billion in liability, even though nobody has been harmed by its use of biometric controls on cash registers and punch-clocks. No state has followed Illinois’ “lead.”
When state policies fail, it makes the country better off. That is the genius of federalism, which divides power among the states and federal government. It allows for experimentation among states to discover superior policies. Stated in the negative, federalism allows bad policies, like those in the new Utah legislation, to lose traction and die.
Jim Harper is a nonresident senior fellow at the American Enterprise Institute, where he focuses on privacy issues and select legal and constitutional-law issues.
Originally published by the American Enterprise Institute. Republished with permission.
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