NetChoice Seeks to Block Ark. Social Media Law for Its ‘Breathtaking’ Restrictions
Government efforts to restrict minors from accessing online content “have repeatedly been struck down,” especially when they impede the First Amendment rights of adults as well, and Arkansas' social media age verification law “should meet the same fate,” said NetChoice. It filed a memorandum Friday (docket 5:23-cv-05105) in U.S. District Court for Western Arkansas in Fayetteville in support of its motion for a preliminary injunction to block Attorney General Tim Griffin (R) from enforcing the measure when it takes effect Sept. 1 (see 2306300001).
SB-396 “purports to protect minors” from the harmful effects of social media by requiring social media companies to verify that any person seeking to create an account is at least 18 years old or has parental consent to do so, said NetChoice. By enacting the measure, Arkansas has “burdened access to what for many are the principal sources for speaking, listening, learning about current events,” it said. “Worse still,” it does so “by drawing a slew of content-, speaker-, and viewpoint-based distinctions,” it said. Griffin has vowed to vigorously defend the statute in court.
Arkansas “might think that those distinctions are sensible,” but the U.S. Supreme Court “has long recognized that the government may not discriminate between speakers or decide what expressive materials minors should be allowed to access,” said NetChoice. A preliminary injunction is all the more necessary “because of the lopsided equities here,” it said. The harm “is especially acute” because SB-396 “imposes severe sanctions for violations,” it said. NetChoice members that are “arguably covered” by SB-396 “will face a perilous choice between exposing themselves to massive liability for disseminating speech to minors or taking costly and burdensome steps that will drastically curtail access to their services, all before a court can decide the merits of their claims,” it said.
Arkansas, on the other hand, won’t be harmed “by maintaining the status quo,” said NetChoice. The state “has no legitimate interest in enforcing an unconstitutional law,” it said. It also hasn’t proceeded “as if its interests demand immediate enforcement,” as the legislature delayed SB-396's effective date by more than four months, it said. The court should preliminarily enjoin Griffin from enforcing SB-396 against NetChoice or its members by issuing an injunction before it takes effect Sept. 1, it said.
Parents “already have many ways to control what their children see on the internet,” said NetChoice. In a nation that values the First Amendment, the “preferred response” to concerns about online content “is to leave it to parents to decide what material or technology is appropriate for their children,” it said. The movie, music and video game industries “have developed sophisticated ratings systems to assist parents,” and the same is true of the internet, it said: “The tech industry has developed sophisticated filtering tools and technologies that allow parents to restrict what their children see, often in response to consumer demand.”
A preliminary injunction “is amply warranted here” because NetChoice is likely to succeed on its First Amendment claim that SB-396 “restricts a breathtaking amount of First Amendment activity,” said the memorandum. SB-396 can’t survive “any level of heightened scrutiny, let alone strict scrutiny,” it said. The other preliminary injunction factors “tip decidedly in favor of maintaining the status quo given the threatened irreparable injury, the absence of any harm to the state, and the fact that preserving the status quo will serve the public interest,” it said.