NetChoice LLC v. ReyesNetChoice LLC v. Reyes
MEMORANDUM DECISION AND ORDER
Earlier this year, the State of Utah enacted the Utah Minor Protection in Social
health and personal privacy by requiring social media platforms to verify users’ ages and impose special restrictions on minors’ accounts.
Now before the court are two cases challenging the Act, alleging it violates the rights to free expression and due process under the First and Fourteenth Amendments of the United States Constitution. The first is brought by Plaintiff NetChoice, LLC. NetChoice is a trade association comprised of internet companies, including household names such as Google, Meta, Snap, and X. The second is brought by Plaintiffs Hannah Paisley Zoulek, Jessica Christensen, Lu Ann Cooper, M.C., Val Snow, and Utah Youth Environmental Solutions. The Zoulek Plaintiffs are minors, adults, and a youth-led organization who use social media platforms to learn, express themselves, and interact with others. Both NetChoice and the Zoulek Plaintiffs seek orders enjoining Defendants Sean D. Reyes and Katherine Hass from enforcing the Act while the court resolves the parties’ constitutional challenges.2
As explained below, the court finds NetChoice is substantially likely to succeed on its claim the Act violates the First Amendment and grants its request for a preliminary injunction. The court recognizes the State‘s earnest desire to protect young people from the novel challenges associated with social media use. But owing to the First Amendment‘s paramount place in our democratic system, even well-intentioned legislation that regulates speech based on content must satisfy a tremendously high level of constitutional scrutiny. And on the record before the court, Defendants have yet to show the Act does.
Separately, the court finds the Zoulek Plaintiffs have not sufficiently alleged their standing to challenge the Act‘s constitutionality and denies their request for a preliminary injunction. The court dismisses the Zoulek Plaintiffs’ claims without prejudice and invites them to move for leave to file an amended complaint if they wish to do so.
BACKGROUND
I. The Parties
A. NetChoice
NetChoice is a nonprofit trade association for internet companies.3 It seeks to “promote online commerce and speech,” “increase consumer access and options via the [i]nternet,” and “minimiz[e] the burdens that would prevent businesses from making the [i]nternet more accessible and useful.”4 NetChoice members include many prominent internet companies: Dreamwidth; Google, which owns and operates YouTube; Meta, which owns and operates Facebook and Instagram; Nextdoor; Pinterest; Snap Inc., which owns and operates Snapchat; and X.5
B. The Zoulek Plaintiffs
The Zoulek Plaintiffs are Utah residents and a Utah-based association who use social media to “communicate, express themselves, associate with peers, and learn.”8 They contend the Act would restrict their ability “to communicate and access information.”9
Hannah Paisley Zoulek is a soon-to-be college student who uses social media for educational purposes and to connect with communities of users expressing themselves through creative writing.10 Jessica Christensen is a prominent advocate for former members of polygamous groups who herself escaped a polygamous family at age fifteen.11 Minors and adults who have left or are seeking help in leaving abusive homes frequently contact her through social media.12 Lu Ann Cooper is the co-founder and president of Hope After Polygamy, which provides support to individuals, including minors, who are in or have left polygamist communities.13 Hope After Polygamy maintains several social media accounts to educate the public about its services and communicate with minors seeking help.14 M.C. is Cooper‘s daughter and a high school student who uses social media to connect with friends, explore creative interests, and obtain information about a range of topics.15 Val Snow is a YouTuber who makes videos about mental health, resilience, and LGBTQ-related issues.16 Both minors
and adults watch his content and contact him through the channel for support.17 And Utah Youth Environmental Solutions (UYES) is a “youth-led grassroots organization that seeks to educate young people in Utah regarding climate change and environmental issues.”18 It uses social media to advertise opportunities for involvement, promote other resources and information, and communicate with minors interested in the organization.19
C. Defendants
Defendants are Katherine Hass and Sean Reyes, both sued in their official capacity.20 Hass is Director of the Division of Consumer Protection of the Utah Department of Commerce (the Division).21 The Act grants enforcement authority to the Division and its Director.22 Reyes is
II. The Act
In March 2024, the State enacted the Utah Minor Protection in Social Media Act.25 Scheduled to take effect on October 1, 2024, the Act partially replaces Utah‘s Social Media Regulation Act of 2023, which the State repealed after NetChoice and the Zoulek Plaintiffs filed separate cases challenging its constitutionality.26 The Act purports to advance Utah‘s
“compelling interest in safeguarding the well-being and privacy of [Utah] minors” who use social media services.27
A. Central Coverage Definition
The Act regulates “social media compan[ies],”28 defined as “entit[ies] that own[] or operate[] a social media service.”29 A “social media service” is, in turn, defined as “a public website or application” that:
- displays content that is primarily generated by account holders and not by the social media company;
- permits an individual to register as an account holder and create a profile that is made visible to the general public or a set of other users defined by the account holder;
- connects account holders to allow users to interact socially with each other within the website or application;
- makes available to each account holder a list or lists of other account holders
with whom the account holder shares a connection within the system; and
- allows account holders to post content viewable by other users.30
The Act expressly excludes from the “social media service” definition “email[,]”
B. The Act‘s Requirements
The Act‘s requirements are readily divided in two parts. First, the Act requires social media companies to “implement an age assurance system to determine whether a current or prospective Utah account holder . . . is a minor.”32 The system must be “reasonably calculated to enable a social media company to identify whether a current or prospective Utah account holder is a minor with an accuracy rate of at least 95%.”33 And in conjunction with this requirement, social media companies must “implement a review process allowing account holders to appeal the account holder‘s age designation by submitting documentary evidence to establish the account holder‘s age range.”34 The company must “review evidence submitted by the account holder and make a determination within 30 days of submission of the evidence.”35
Second, the Act subjects social media companies to special rules with respect to Utah minors’ accounts. Relevant to this case, the Act requires social media companies to “set default privacy settings to prioritize maximum privacy, including settings” that:
(a) restrict the visibility of a Utah minor account holder‘s account to only
connected accounts;36
(b) limit the Utah minor account holder‘s ability to share content to only connected accounts;
(c) restrict any data collection and sale of data from a Utah minor account holder‘s account that is not required for core functioning of the social media service;37
(d) disable search engine indexing of Utah minor account holder profiles;
(e) restrict a Utah minor account holder‘s direct messaging capabilities to only allow direct messaging to connected accounts; and
(f) allow a Utah minor account holder to download a file with all information associated with the Utah minor account holder‘s account[.]38
These default privacy setting may not be changed without a social media company “first obtaining verifiable parental consent.”39
content as long as the user continues scrolling[,]”41 and “push notifications prompting repeated user engagement.”42
Finally, the Act states a covered social media company‘s “terms of service related to a Utah minor account holder shall be presumed to include an assurance of confidentiality for the Utah minor account holder‘s personal information.”43 This presumption “may be overcome if the social media company obtains verifiable parental consent.”44 And the presumption of confidentiality “does not apply to a social media company‘s internal use or external sharing of a Utah minor account holder‘s personal information if the use or sharing is necessary” to:
(a) maintain or analyze functioning of the social media service;
(b) enable network communications;
(c) personalize the user‘s experience based on the user‘s age and location;
(d) display a username chosen by the Utah minor account holder;
(e) obtain age assurance information as required under [Utah Code] Section
(f) comply with the requirements of this chapter or other federal or state laws.45
C. Enforcement
The Act grants the Division enforcement authority and authorizes the Attorney General to “give legal advice to, and act as counsel for the [D]ivision in the exercise of [its] [enforcement]
responsibilities.”46 Specifically, the Division Director “may impose an administrative fine of up to $2,500 for each violation” of the Act,47 and the Division “may bring an action in court to enforce a provision” of the Act.48 For actions brought in court, the court may:
(i) declare that the act or practice violates a provision of [the Act];
(ii) enjoin actions that violate [the Act];
(iii) order disgorgement of any money received in violation of [the Act];
(iv) order payment of disgorged money to an injured purchaser or consumer;
(v) impose a civil penalty of up to $2,500 for each violation of [the Act];
(vii) award any other relief that the court deems reasonable and necessary.49
“If a court grants judgment or injunctive relief to the [D]ivision,” the Act further provides “the court shall award the [D]ivision” its “reasonable attorney fees[,]” “court costs[,]” and “investigative fees.”50
The Act provides a “safe harbor” for social media companies who implement “age assurance” and “verifiable parental consent” mechanisms that comport with rules promulgated by the Division.51 The safe harbor provides that a social media company “is not subject to an enforcement action for a violation of Section
social media company implements and maintains an age assurance system that complies with rules made by the [D]ivision.”52 And the same provision assures that “[a] social media company is considered to have obtained verifiable parental consent if the social media company obtains parental consent through a mechanism that complies with . . . rules made by the [D]ivision.”53
III. Procedural History
NetChoice and the Zoulek Plaintiffs initiated their respective cases in December 2023 and January 2024, challenging the constitutionality of the then-existing Utah Social Media Regulation Act of 2023.54 Shortly thereafter, however, the court stayed both cases pending the completion of the 2024 Utah legislative session.55 During the session, the Utah Legislature repealed the 2023 law and partially replaced it with the Act.56 The parties in both cases agreed to file amended complaints drawn to the Act.57
On May 3, 2024, NetChoice filed its First Amended Complaint and the present Motion for Preliminary Injunction.58 The Zoulek Plaintiffs followed suit on May 31, 2024.59 Both Plaintiffs broadly challenge the constitutionality of the Act, arguing it violates the First Amendment and the Due Process Clause of the Fourteenth Amendment by impermissibly
regulating the protected speech of social media companies and their users.60 Each Plaintiff also asserts
Defendants oppose both Motions for Preliminary Injunction on the grounds that Plaintiffs fail to meet their burden “of establishing a clear and unequivocal right” to injunctive relief.64 To that end, Defendants primarily contend Plaintiffs “cannot . . . demonstrate that [they are] likely to succeed on the merits” because “the Act is a reasonable and constitutional regulation that is appropriately tailored to the State‘s important and compelling interests.”65
After Plaintiffs filed their Motions for Preliminary Injunctions, Defendants separately moved to dismiss certain claims in each case. In the NetChoice case, Defendants moved to dismiss NetChoice‘s Section 230 preemption claim,66 and in the Zoulek case, Defendants moved to dismiss the Zoulek Plaintiffs’ Section 230 preemption and Commerce Clause claims.67 On July 22, 2024, the court issued a Memorandum Decision and Order granting Defendants’ Motion
to Dismiss NetChoice‘s Section 230 preemption claim for failure to state a claim under
With those claims dismissed, only Plaintiffs’ challenges under the First and Fourteenth Amendments remain, and the court considers only those challenges in its analysis of the present Motions. Those Motions are fully briefed71 and the court heard oral
ANALYSIS
The court takes up the parties’ Motions separately, beginning with NetChoice‘s Motion and then proceeding to the Zoulek Plaintiffs’ Motion. Although Defendants’ do not challenge either Plaintiffs’ standing, “[t]he standing requirement is an ‘irreducible constitutional minimum’ that ‘serv[es] to identify those disputes which are appropriately resolved through the judicial
process.‘”73 Accordingly, the court begins its review of each Motion by examining Plaintiffs’ standing. Concluding NetChoice has standing, the court proceeds to the merits of its Motion and grants its request for preliminary injunctive relief. Concluding the Zoulek Plaintiffs lack standing, the court denies the Zoulek Plaintiffs’ Motion and dismisses each of their claims.
I. NetChoice‘s Motion
A. NetChoice Has Standing to Assert Harms to the First Amendment Interests of Its Members.
The court begins its analysis of NetChoice‘s Motion by reviewing whether NetChoice has standing to raise constitutional challenges against the Act. “The familiar tripartite test for standing requires a plaintiff to show (1) it has ‘suffered an injury in fact‘; (2) the injury is ‘fairly traceable to the challenged action of the defendant‘; and (3) it is ‘likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.‘”74 However, a different standing test applies to organizations asserting claims on behalf of their members.75 Such an organization must show “(1) at least one of its members would have standing to sue in the member‘s own right; (2) the interest it seeks to protect is germane to its purpose; and (3) neither the claim asserted nor the relief requested requires the member to participate in the lawsuit.”76
NetChoice, suing on behalf of its members, satisfies these requirements.77 First,
Thus, the court concludes NetChoice has standing to raise constitutional claims on behalf of its members.82
B. NetChoice Is Entitled to a Preliminary Injunction.
Having reviewed NetChoice‘s standing, the court turns to NetChoice‘s Motion for Preliminary Injunction. To obtain a preliminary injunction under Rule 65 of the Federal Rules of Civil Procedure, a moving party must establish four elements: “(1) a substantial likelihood of success on the merits; (2) irreparable harm to the movant if the injunction is denied; (3) the threatened injury outweighs the harm . . . the preliminary injunction may cause the opposing party; and (4) the injunction, if issued, will not adversely affect the public interest.”83 Because preliminary injunctive relief “is an extraordinary remedy” the moving party‘s “right to relief must be clear and unequivocal.”84
As described below, NetChoice clears this hurdle. First, NetChoice has shown it is substantially likely to succeed on the merits of its claim the entire Act violates the United States Constitution. Specifically, NetChoice has shown it is substantially likely to succeed on its first cause of action—that the entire Act, through the Act‘s Central Coverage Definition, facially violates the First Amendment.85 Second,
1. NetChoice is Substantially Likely to Succeed on the Merits of Its Claim the Entire Act, Through the Central Coverage Definition, Violates the First Amendment.
NetChoice argues the entire Act facially violates the First Amendment because the Act‘s
operative provisions each rely on the Central Coverage Definition, and the Central Coverage Definition imposes unjustified, content-based restrictions on social media companies’ speech.86
NetChoice‘s argument is persuasive. As a preliminary matter, there is no dispute the Act implicates social media companies’ First Amendment rights.87 The speech at issue in this case—the speech social media companies engage in when they make decisions about how to construct and operate their platforms—is protected speech.88 The Supreme Court has long held that “[a]n entity ‘exercis[ing] editorial discretion in the selection and presentation’ of content is ‘engage[d] in speech activity‘” protected by the First Amendment.89 And this July, in Moody v. NetChoice, LLC, the Court affirmed these First Amendment principles “do not go on leave when social media are involved.”90 Indeed, the Court reasoned that in “making millions of . . . decisions each day” about “what third-party speech to display and how to display it,” social media companies “produce their own distinctive compilations of expression.”91
Regarding the more pressing question—whether the Act facially violates social media companies’ First Amendment rights—the probable answer is “yes.” As explained below,
NetChoice has shown it is substantially
i. NetChoice Has Shown the Act Imposes Content-Based Restrictions on Social Media Companies’ Speech.
NetChoice argues the entire Act is facially content based because the Central Coverage Definition draws distinctions between websites that allow users to interact socially and websites that serve another function or purpose, such as those that allow users to shop, read the news, access entertainment, educate themselves, or conduct business.93 In brief review, the Central Coverage Definition defines a “social media company” as “an entity that owns or operates a social media service,” and defines a “social media service” by reference to five characteristics, including “a public website or application” that “allow[s] users to interact socially with each
other . . . .”94 The court agrees with NetChoice.
While a law “is facially content based . . . if it ‘applies to particular speech because of the topic discussed or the idea or message expressed[,]”95 not all “facial distinctions are obvious,”96 and a law “cannot escape classification as facially content based simply by swapping an obvious subject-matter distinction for a ‘function or purpose’ proxy that achieves the same result.”97 Additionally, even “facially content neutral” laws must be considered content based if they “cannot be justified without reference to the content of the regulated speech,” or if they “were adopted . . . because of disagreement with the message the speech conveys.”98
Distinguishing Reed, the Court explained that although the on-premises/off-premises distinction “required a reader to inquire ‘who is the speaker and what is the speaker saying,‘” it required that inquiry “only in service of drawing neutral, location-based lines.”102 This examination was “agnostic as to content,” failing to “single out any topic or subject matter for differential treatment.”103
The Central Coverage Definition, like the sign ordinance at issue in Reed, appears to draw facially content-based distinctions between subjects of speech. Just as the Reed ordinance divided the universe of signs into political signs, defined as signs “designed to influence the outcome of an election,” and temporary directional signs, defined as “signs directing the public to a church,”104 the Act‘s Central Coverage Definition divides the universe of internet platforms into social media services, defined as websites or applications that “allow users to interact socially with each other,” and other internet platforms, such as platforms for “news, sports, commerce, [and] online video games.”105
Defendants respond that the Definition contemplates a social media service‘s “structure, not subject matter.”106 However, Defendants’ argument emphasizes the elements of the Central Coverage Definition that relate to “registering accounts, connecting accounts, [and] displaying user-generated content” while ignoring the “interact socially” requirement.107 And unlike the premises-based distinction at issue in City of Austin, the social interaction-based distinction does
not appear designed to inform the application of otherwise content-neutral restrictions. It is a distinction that singles out social media companies based on the “social” subject matter “of the material [they] disseminate[].” 108 Or as Defendants put it, companies offering servicesDefendants also respond that the Central Coverage Definition is content neutral because it does not prevent “minor account holders and other users they connect with [from] discuss[ing] any topic they wish.” 110 But in this respect, Defendants appear to misunderstand the essential nature of NetChoice‘s position. The foundation of NetChoice‘s First Amendment challenge is not that the Central Coverage Definition restricts minor social media users’ ability to, for example, share political opinions. Rather, the focus of NetChoice‘s challenge is that the Central Coverage Definition restricts social media companies’ abilities to collage user-generated speech into their “own distinctive compilation[s] of expression.” 111
Moreover, because NetChoice has shown the Central Coverage Definition facially distinguishes between “social” speech and other forms of speech, it is substantially likely the Definition is content based and the court need not consider whether NetChoice has “point[ed] to any message with which the State has expressed disagreement through enactment of the Act.” 112 Likewise, the court need not consider NetChoice‘s additional arguments that the Definition is speaker based or viewpoint based. 113
ii. Defendants Have Not Shown the Act Satisfies Strict Scrutiny.
Accepting that the entire Act, through the Central Coverage Definition, is facially content based, strict scrutiny applies. 114 The Act is “presumptively unconstitutional and may be justified only if the government proves that [it is] narrowly tailored to serve compelling state interests.” 115 Defendants have not met their burden to satisfy this “demanding standard.” 116
Although the Act‘s statutory language asserts “the state [of Utah] has a compelling interest in safeguarding the well-being and privacy of minors in the state[,]” 117 Defendants have not met their burden to articulate a compelling government interest warranting the Act‘s intrusion on social media companies’ First Amendment rights.
To satisfy this exacting standard, Defendants must “specifically identify an ‘actual problem’ in need of solving.” 118 In Brown v. Entertainment Merchants Association, for example, the Supreme Court held California failed to demonstrate a compelling government interest in protecting minors from violent video games because it lacked evidence showing a causal “connection between exposure to violent video games and harmful effects on children.” 119 Reviewing psychological studies California cited in defense of its position, the Court reasoned research “show[ed] at best some correlation between exposure to violent entertainment” and “real-world effects.” 120 This “ambiguous proof” did not establish violent videogames were such a problem that it was appropriate for California to infringe on its citizens’ First Amendment rights. 121 Likewise, the Court rejected the notion that California had a compelling interest in “aiding parental authority.” 122 The Court reasoned the state‘s assertion ran contrary to the “rule that ‘only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to [minors].‘” 123
Viewing Defendants’ argument through a wide lens, the court understands Defendants’ position to be that the State has compelling interests in protecting minors from the mental health- and personal privacy-related harms associated with excessive social media use. 124 But these interests, like California‘s interests in protecting minors from the harms associated with violent videogames and aiding parental
First, though the court is sensitive to the mental health challenges many young people face, Defendants have not provided evidence establishing a clear, causal relationship between minors’ social media use and negative mental health impacts. It may very well be the case, as Defendants allege, that social media use is associated with serious mental health concerns including depression, anxiety, eating disorders, poor sleep, online harassment, low self-esteem, feelings of exclusion, and attention issues. 125 But the record before the court contains only one report to that effect, and that report—a 2023 United States Surgeon General Advisory titled Social Media and Youth Mental Health—offers a much more nuanced view of the link between social media use and negative mental health impacts than that advanced by Defendants. 126 For example, the Advisory affirms there are “ample indicators that social media can . . . have a profound risk of harm to the mental health and well-being of children and adolescents,” while emphasizing “robust independent safety analyses of the impact of social media on youth have not yet been conducted.” 127 Likewise, the Advisory observes there is “broad agreement among the scientific community that social media has the potential to both benefit and harm children and adolescents,” depending on “their individual strengths and vulnerabilities, and . . . cultural, historical, and socio-economic factors.” 128 The Advisory suggests social media can benefit minors by “providing positive community and connection with others who share identities, abilities, and interest,” “provid[ing] access to important information and creat[ing] a space for self-expression,” “promoting help-seeking behaviors[,] and serving as a gateway to initiating mental health care.” 129
The record also contains a Declaration by Dr. Jean Twenge, a psychology professor at San Diego State University, describing various reports linking social media use to negative mental health impacts. 130 But these reports are not themselves a part of the record, and the court is unable to assess their results or methodologies. Moreover, a review of Dr. Twenge‘s Declaration suggests the majority of the reports she cites show only a correlative relationship between social media use and negative mental health impacts. 131 Insofar as those reports support a causal relationship,
Second, Defendants’ position that the Act serves to protect uninformed minors from the “risks involved in providing personal information to social media companies and other users” 133 ignores the basic First Amendment principle that “minors are entitled to a significant measure of First Amendment Protection.” 134 The personal information a minor might choose to share on a social media service—the content they generate—is fundamentally their speech. And the Defendants may not justify an intrusion on the First Amendment rights of NetChoice‘s members with, what amounts to, an intrusion on the constitutional rights of its members’ users. 135
Third, with respect to both the State‘s mental health and personal privacy concerns, Defendants generally argue parents are caught “in a losing battle against social media companies for the attention and well-being of their own children.” 136 However, Defendants’ evidence is far from clear that “the Act‘s restrictions meet a substantial need of parents who wish to restrict their children‘s access to” social media services and “cannot do so” otherwise. 137 To the contrary, Defendants’ evidence generally indicates “[o]ther methods exist to advance the goal of protecting children on the internet, including parental controls and web filtering technology.” 138
b. Defendants Have Not Shown the Act Is Narrowly Tailored.
Even assuming Defendants have established the State‘s mental health and personal privacy concerns are “actual problem[s] in need of solving,” 139 the Act fails strict scrutiny because Defendants have not shown it is “carefully tailored to achieve those ends.” 140 In the strict scrutiny
To begin, Defendants have not shown the Act is the least restrictive option for the State to accomplish its goals because they have not shown existing parental controls are an inadequate alternative to the Act. 144 While Defendants present evidence suggesting parental controls are not in widespread use, 145 their evidence does not establish parental tools are deficient. It only demonstrates parents are unaware of parental controls, do not know how to use parental controls, or simply do not care to use parental controls. 146 Moreover, Defendants do not indicate the State has tried, or even considered, promoting “the diverse supervisory technologies that are widely available” as an alternative to the Act. 147 The court is not unaware of young people‘s technological prowess and potential to circumvent parental controls. 148 But parents “control[] whether their minor children have access to Internet-connected devices in the first place,” 149 and Defendants have not shown minors are so capable of evading parental controls that they are an insufficient alternative to the State infringing on protected speech. 150
Defendants also suggest the Act is essential to solving social media-related problems because social media platforms contain “nicotine-like additives“—namely, seamless pagination, autoplay, and push notification systems—designed to foster
Next, Defendants have not shown the Act is not seriously “underinclusive when judged against its asserted justification[s].” 152 Brown is illustrative for this purpose where the Supreme Court held California‘s restrictions on minors’ access to violent videogames were underinclusive in so far as they did not restrict minors’ access to other media, including “Saturday morning cartoons” or videogames “rated for young children.” 153 The Court reasoned California‘s failure to regulate cartoons like Bugs Bunny and non-violent videogames like Sonic the Hedgehog was problematic because research showed they produced the same effect in children as violent videogames. 154 This result “raise[d] serious doubts about whether the government [was] in fact pursing the interest it invoke[d], rather than disfavoring a particular speaker or viewpoint.” 155
Like Brown, the Act appears underinclusive when judged against the State‘s interests in protecting minors from the harms associated with social media use because the Act ultimately preserves minors’ ability to spend as much time as they want on social media platforms. This outcome does not comport with a core underpinning of Defendants’ argument—that excessive social media use harms minors. 156 Similarly, the Act preserves minors’ access to the addictive features Defendants express particular concern with on all internet platforms other than social media services. 157 As NetChoice explains, “a teenager can receive notifications about their favorite sports team from ESPN but not from X—even if the notification is word-for-word the same.” 158 They can “seamlessly scroll through image searches on Bing or through college rankings on U.S. News and World Report but cannot use such seamless pagination for searching recipes on Pinterest.” 159 And they “can autoplay videos on Disney+ and Hulu,” but not YouTube. 160
Defendants generally respond to these underinclusivity concerns by suggesting a social media-specific problem arises when social media companies’ use “addictive design features” in combination with “user-generated [content] and user-to-user interface.” 161 But Defendants simply do not offer
Finally, Defendants have not shown the Act is not seriously overinclusive, restricting more constitutionally protected speech than necessary to achieve the State‘s goals. Specifically, Defendants have not identified why the Act‘s scope is not constrained to social media platforms with significant populations of minor users, or social media platforms that use the addictive features fundamental to Defendants’ well-being and privacy concerns. 165 NetChoice member Dreamwidth, “an open source social networking, content management, and personal publishing website,” provides a useful illustration of this disconnect. 166 Although Dreamwidth fits the Central Coverage Definition‘s concept of a “social media service,” Dreamwidth is distinguishable in form and purpose from the likes of traditional social media platforms—say, Facebook and X. 167 Additionally, Dreamwidth does not actively promote its service to minors and does not use features such as seamless pagination and push notification. 168
In combination, these shortcomings demonstrate Defendants have not met their burden to show the Act, through the Central Coverage Definition, is narrowly tailored to advance a compelling government interest. 169 As a result, the court concludes Defendants have not met their “burden of proof on the ultimate question of the . . . Act‘s constitutionality,” 170 and
2. The Remaining Preliminary Injunction Factors Support NetChoice‘s Request for Injunctive Relief.
Having determined NetChoice is substantially likely to succeed on the merits of its First Amendment challenge, the court next considers the remaining preliminary injunction factors. “When a movant establishes the first prong of a preliminary injunction based on a First Amendment claim, the remaining prongs generally also weigh in [its] favor.” 172 Such is the case here.
i. NetChoice Has Shown Its Members Will Suffer Irreparable Injury Absent a Preliminary Injunction.
Under the second preliminary injunction factor, NetChoice must demonstrate it will suffer irreparable injury in the absence of an injunction. Within the First Amendment context, however, “[t]he Supreme Court has made clear that ‘the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.‘” 173 This principle comports with the wider view that “the infringement of a constitutional right . . . require[s] no further showing of irreparable injury.” 174 Separately, courts hold that a plaintiff suffers irreparable injury when they face “monetary damages that cannot later be recovered for reasons such as sovereign immunity.” 175
NetChoice has shown its members face irreparable injury absent a preliminary injunction for both these reasons. First, as explained above, NetChoice has shown it is substantially likely to succeed on the merits of its claim the Act, through the Central Coverage Definition, violates its members’ First Amendment rights. Because even brief First Amendment violations “unquestionably constitute[] irreparable injury,” NetChoice has shown it will suffer irreparable harm absent a preliminary injunction. 176 Second, NetChoice members stand to incur substantial unrecoverable expenses in the form of either civil penalties or compliance costs absent a preliminary injunction because Defendants, sued in their official capacities as government employees, are immune from suit for monetary
ii. The Balance of Equities and the Public Interest Weigh in Favor of a Preliminary Injunction.
When the government is the opposing party to a lawsuit, the third and fourth preliminary factors “merge.” 179 A moving party must show avoiding the harm a threatened injury poses is consistent with the public interest. Though, the Tenth Circuit holds “it is always in the public interest to prevent the violation of a party‘s constitutional rights.” 180
Because NetChoice has shown it is substantially likely the Act violates social media companies’ First Amendment rights, it follows that the balance of equities and the public interest lean in NetChoice‘s favor. Defendants counter that the public interest favors “protecting children and adolescents from the harmful effects of social media” and preserving the State‘s ability to “enact and enforce” state laws. 181 But as discussed above, Defendants have not shown the State‘s desire to protect minors eclipses the First Amendment. Indeed, the public interest in protecting constitutional rights is “more profound” than the public interest in carrying out “the will of the voters” through the implementation of state laws. 182 Accordingly, the court concludes the final two preliminary injunction factors, in combination with the first two factors, support granting NetChoice‘s request for a preliminary injunction.
iii. No Bond is Required.
Rule 65(c) provides a “court may issue a preliminary injunction . . . only if the movant gives a security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.” 183 Although the parties do not address this issue, the court must. 184 Trial
Because this preliminary injunction “enforces fundamental constitutional rights against the government,” the court determines “[w]aiving the security requirement best accomplishes the purposes of Rule 65(c).” 186 No bond is required.
II. The Zoulek Plaintiffs’ Motion
The court now turns to the Zoulek Plaintiffs’ Motion, which argues, among other things, that the court should enjoin enforcement of the Act because the Zoulek Plaintiffs are likely to prevail on the merits of their First Amendment claims. 187 Although neither party addresses the Zoulek Plaintiffs’ standing to bring these claims, the court begins—and ends—its analysis with this threshold inquiry. 188
A. The Zoulek Plaintiffs Lack Standing to Challenge the Act Under the First Amendment.
Recall that to establish standing, a plaintiff must show they have suffered an injury in fact, that their injury is fairly traceable to the challenged actions of defendants, and that it is likely, as opposed to merely speculative, that their injury will be redressed by a favorable decision of the court. 189 This showing is “substantially more difficult to establish” when “a plaintiff‘s asserted injury arises from the government‘s allegedly unlawful regulation . . . of someone else.” 190 Because courts are reluctant to engage in “guesswork as to how independent decisionmakers will exercise their judgment,” 191 a plaintiff must “adduc[e] facts showing that . . . third-party choices have been or will be made in such a manner as to . . . permit redressability of injury.” 192
Applying this standard to the present case, the Zoulek Plaintiffs suffer from a redressability problem. The Act regulates social media companies—not social media users. And any injuries to the Zoulek Plaintiffs’ First Amendment rights would arise as the second-order effects of social media companies’ responses to the Act. Nonetheless, the Zoulek Plaintiffs have not identified how an injunction will ensure redress of their purported injuries. They
At oral argument, the Zoulek Plaintiffs suggested the existence of NetChoice‘s lawsuit resolved their redressability problem. They identified references to the parallel lawsuit in their Motion and First Amended Complaint and suggested the court could take judicial notice of its existence as evidence social media companies intended to maintain the status quo unless otherwise required to act. However, the Zoulek Plaintiffs did not cite legal authority in support of this contention, and NetChoice‘s lawsuit offers no clear indication its members will maintain minors’ access to their platforms absent an injunction. 194
Perhaps social media companies would maintain minors’ access, recognizing the ways minors use their platforms to communicate and learn. Or perhaps social media companies would see value in the State‘s mental health and data privacy concerns and voluntarily reduce minors’ access. The issue is we do not know. The Zoulek Plaintiffs have not pled facts demonstrating social media companies “will likely react in predictable ways” if the court enjoins the Act. 195
Under these circumstances, the court must conclude the Zoulek Plaintiffs’ injuries are not redressable, and the Zoulek Plaintiffs’ lack standing to challenge the Act under the First Amendment.
The effect of the Zoulek Plaintiffs’ lack of standing extends beyond their Motion for Preliminary Injunction. “Because Article III standing is a jurisdictional issue,” the court‘s conclusion that the Zoulek Plaintiffs lack standing means the court does not have subject matter jurisdiction to hear their claims. 196 And “once a federal court determines that it is without subject matter jurisdiction, the court is powerless to continue.” 197 It “must dismiss the action.” 198 Accordingly, the court dismisses the Zoulek Plaintiffs’ First Amendment claims, Counts I and II of their First Amended Complaint, without prejudice.
CONCLUSION
For the forgoing reasons, NetChoice‘s Motion is GRANTED. Defendants, their agents, their employees, and all other persons acting under their direction or control are PRELIMINARILY ENJOINED under
The Zoulek Plaintiffs’ Motion is DENIED and Counts I and II of the Zoulek Plaintiffs’ First Amended Complaint are dismissed without prejudice. The Zoulek Plaintiffs may seek leave to file an amended complaint within thirty (30) days.
SO ORDERED this 10th of September 2024.
BY THE COURT:
ROBERT J. SHELBY
United States Chief District Judge
Notes
- the proliferation of social media services has led to the widespread collection and utilization of personal information, exposing minors to potential privacy and identity related harms;
- the addictive design features of certain social media services contribute to excessive use of a social media service by minors, impacting sleep patterns, academic performance, and overall health;
- social media services are designed without sufficient tools to allow adequate parental oversight, exposing minors to risks that could be mitigated with proper parental involvement and control;
- the state has enacted safeguards around products and activities that pose risks to minors, including regulations on motor vehicles, medications, and products and services targeted to children;
- prolonged and unregulated social media use has been linked to adverse effects on the mental health of minors, including increased rates of anxiety, depression, and social isolation;
- existing measures employed by social media companies to protect minors have proven insufficient; and
- the state should ensure that minors’ personal data is given special protection, as minors may have less awareness of the risks, consequences, and safeguards related to a social media company‘s processing of minors’ personal data.
Defendants also cite Turner Broadcasting System v. F.C.C. in support of their position that the Central Coverage Definition is content-neutral. See NetChoice Opposition at 22. In Turner, the Supreme Court employed a two-part analysis to hold rules requiring cable television systems to carry local broadcast television stations were not content based. Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 645 (1994) (“Our cases have recognized that even a regulation neutral on its face may be content based if its manifest purpose is to regulate speech because of the message it conveys.“). First, the Court held the rules were not facially content based because they were “based only upon the manner in which speakers transmit their messages to viewers, and not upon the messages they carry.” Id. at 637-45. Second, the Court held that content-based purposes did not underlie the facially content neutral rules. Id. at 645-49. Defendants’ argument relies on the second piece of this analysis. See NetChoice Opposition at 22. But as outlined above, the court need not conduct this analysis because the Central Coverage Definition is facially content based.
Recall that it is NetChoice‘s burden to show it is likely to succeed on the merits of its First Amendment challenge. See Leachco, Inc., 103 F.4th at 752; Awad v. Ziriax, 670 F.3d 1111, 1129 (10th Cir. 2012). That being so, the “burdens at the preliminary injunction stage track the burdens at trial,” and Defendants bear “the burden of proof on the ultimate question of the challenged Act‘s constitutionality.” Awad, 670 F.3d at 1129 (quoting Gonzales v. O Centro Espirita Beneficente Uniao de Vegetal, 546 U.S. 418, 429 (2006)); see also Playboy Ent. Group, 529 U.S. at 818 (“When First Amendment compliance is the point to be proved, the risk of nonpersuasion—operative in all trials—must rest with the Government, not with the citizen.“).
The Declaration of Carl Szabo in Support of Plaintiff‘s Motion for Preliminary Injunction provides a useful explanation of the utility of these alternative methods. See Dkt. 52-1 (NetChoice), Declaration of Carl Szabo in Support of Plaintiff‘s Motion for Preliminary Injunction (Szabo Declaration) ¶¶ 8-9. Szabo describes the lengths NetChoice‘s members go to protect children on their social media platforms, as well as the network-, device-, browser-, and app-level restrictions parents may implement to control their children‘s access to various social media services. Id.