Ark. Social Media Law Fraught With ‘Nonsensical’ Free Speech Limits, Says NetChoice

NetChoice’s complaint Thursday (docket 5:23-cv-05105) asks the U.S. District Court for Western Arkansas in Fayetteville to declare the Arkansas Social Media Safety Act unconstitutional for infringing First Amendment rights and to enjoin Attorney General Tim Griffin (R) from enforcing it when it takes effect Sept 1. But Griffin looks forward to “vigorously defending” the statute in court, he emailed Thursday through a spokesperson.

By restricting the access of minors, and adults who now have to prove their age, to “ubiquitous online services,” the Arkansas statute has, with a single broad stroke, “burdened access to what for many are the principal sources for speaking and listening,” alleged the NetChoice complaint. The statute restricts access to a website “that permits users to share videos of their newest dance moves or other acts of entertainment, but not to a website that provides career development opportunities,” it said. Arkansas Gov. Sarah Huckabee Sanders (R) signed the measure into law April 12.

Under the statute, minors “may readily access websites that provide news, sports, entertainment, and online shopping, but not those that allow them to upload their favorite recipes or pictures of their latest travels or athletic exploits,” said the NetChoice complaint. The law doesn’t restrict access to supposedly harmful content “in any sensible way,” it said. It “arguably applies” to Facebook and Twitter but not Mastadon, Discord, BeReal, Gab, Truth Social, Imgur, Brainly, DeviantArt or Twitch. It thus “appears to restrict access to political expression on Twitter and photography on Instagram but places no restrictions on the exact same expression on Truth Social or DeviantArt,” it said.

Though Arkansas might think some of the statute’s restrictive “distinctions” are sensible, the U.S. Supreme Court “has long recognized that it is not the role of the government to decide what expressive materials minors should be allowed to access,” said the complaint.The statute’s definitions of what constitutes a social media company are “hopelessly vague,” it said, leaving companies guessing “whether they are regulated” by the new law. The statute also is preempted in part by the Child Online Privacy Protection Act, and it also “contravenes” the commerce clause, it said.

There has long been some speech “that many adults would prefer minors not hear,” said NetChoice’s complaint. “Even so, the government typically cannot require certain works to be kept in an ‘adults only’ section of the mall just because it deems them controversial,” it said. It also can’t require minors “to receive permission from their parents before buying works that carry messages that the government deems too sophisticated for them,” it said.

But when the governor signed the measure into law April 12, Arkansas “took it upon itself to decree what is appropriate for minors” on the internet, said the complaint. But the law doesn’t apply to all online services, or all services that one might think of as social media platforms, it said. “The law instead draws a whole host of nonsensical distinctions based on content, speaker, and viewpoint, imposing its onerous requirements on online services associated with speech that Arkansas apparently disfavors while entirely exempting speech on myriad other services,” it said.

The law imposes “onerous obligations” on social media companies that “severely burden” minors’ and adults’ First Amendment rights “to speak, listen, and associate without government interference on the widely used online services that it covers,” said the complaint. Any social media company that fails to comply with its restrictions “faces civil and criminal liability,” it said. Individuals may sue to recover damages resulting from minors accessing social media platforms without parental consent, it said. The statute also authorizes AG Griffin to bring civil enforcement actions, and to prosecute willful and knowing violations as Class A criminal misdemeanors, it said.

The Arkansas statute “favors speech reflecting the viewpoints of whoever provides the online service,” said the complaint. But the First Amendment doesn’t permit Arkansas “to regulate private speech based on its perception of the value of the views expressed -- particularly where that value is assessed based on who the speaker is,” it said.

The law’s “private enforcement mechanism” creates yet another First Amendment problem, said the complaint. It authorizes any private individual to sue over alleged violations of the parental-consent and age-verification requirements, and to recover a penalty of $2,500 per violation, “even if the individual has not personally sustained any damages,” it said.

The law lacks “the institutional checks that accompany government-enforced restrictions on speech, including prosecutorial discretion, legislative oversight, and public accountability, thus inevitably encouraging vexatious and abusive litigation,” said the complaint. The threat of private lawsuits, accompanied by “potentially massive liability,” is likely to “severely burden the core First Amendment activities that take place on online services,” it said.