Ark. Social Media Age Proof Law Would Harm First Amendment Rights, Say ACLU, EFF

If allowed to go into effect, SB-396, Arkansas’ social media age verification law (see 2307100005), will require all users -- including adults -- to verify their age before they can access their social media accounts, or create new ones, said a Friday amici curiae brief (docket 5:23-cv-05105) filed by the American Civil Liberties Union (ACLU), American Civil Liberties Union of Arkansas and Electronic Frontier Foundation (EFF) in support of NetChoice’s motion for preliminary injunction in U.S. District Court for Western Arkansas in Fayetteville.

NetChoice's memorandum of law this month moved the court for an injunction to block Attorney General Tim Griffin (R) from enforcing SB 396, Act 689, when it takes effect Sept. 1. Under the law, users who fail to show they are 18 or older will have to obtain explicit parental consent to engage on social media. By enacting the measure, Arkansas has “burdened access to what for many are the principal sources for speaking, listening, learning about current events,” NetChoice said. “Worse still,” it does so “by drawing a slew of content-, speaker-, and viewpoint-based distinctions.”

In their brief, the ACLUs and EFF said requirements of the law violate First Amendment rights and impose “significant burdens.” The law will “rob people of anonymity, deter privacy- and security-minded users, and block some individuals from accessing the largest social media platforms at all,” it said. The parental consent requirement will “impermissibly burden” young people’s rights to access information and express themselves online, “stigmatize the use of social media, and run counter to the parental authority of parents who do not object to their kids using social media,” it said.

Courts, including the U.S. Supreme Court and the 8th U.S. Circuit Court of Appeals have held that such burdens on users’ access to and ability to engage with protected speech are “unconstitutional,” said the brief. Laws prohibiting communication of certain materials online without age verification have been “struck down repeatedly, as have laws requiring parental consent for minors to access violent video games and other content that government actors have found objectionable,” it said: “The same result is warranted here.”

The Friday brief cited Packingham v. North Carolina where SCOTUS recognized that the most important places for the exchange of views are the “vast democratic forums of the Internet” and “social media in particular.” Some 70% of American adults, 84% of teens and 38% of children ages 8-12 use social media, it said, citing a 2021 Pew Research report.

Social media exposes people to a “wide range of views and perspectives, and can challenge unquestioned assumptions and beliefs,” the brief said, noting 23% of U.S. adult social media users say they have changed their views about a political or social issue because of something they saw on social media in the past year. Social media “has been central to organizing, joining, and participating in social and political movements from the Tea Party movement, to Occupy Wall Street, to indigenous organizing to protest the Dakota Access Pipeline, to the boycott of Autism Speaks,” it said.

Social media enables individuals to engage with their elected representatives more broadly, and elected officials increasingly rely on social media to promote their campaigns and communicate with constituents while carrying out their duties as public officials, the brief said. People also use social media for artistic expression, it said, citing a violin channel on Facebook, drawing tips available on Instagram and dance styles introduced on TikTok. “Children no longer need to enroll in expensive art classes or work with private tutors to practice artistic skills; they can create and share for free on social media,” it said.

People use social media to share religious beliefs or explore religious identity and to share minority views and experiences, said the brief. Many young LGBTQ people who face discrimination turn to social media for community, exploration, and support; people with disabilities use social media to build community and educate others, it noted. “A fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more,” it said, citing Packingham.

If SB-396 goes into effect, social media users will have to use a “a state-approved application” that connects to “the Office of Driver Services” to offer a “digitized identification card,” or use other government-issued identification or “commercially reasonable age verification method” that the social media company chooses, it said. "This will burden users who do not have government identification, who want to engage in anonymous speech or are otherwise concerned about privacy and security," it said. Age verification requirements can “serve as a complete block to adults who wish to access [online] material but do not have the necessary form of identification,” it said.

Age verification schemes implicate privacy concerns, and courts have repeatedly found that requiring internet users to provide personally identifiable information to access a website “would significantly deter many users from entering the site,” because of concerns over fraud, security and identity theft on the internet, it said.

“Nearly every time a new communications technology emerges, some in society fear the effects it will have on children,” said the brief, citing crime novels in the 1800s, comic books. TV, music lyrics and video games. Yet, SCOTUS “has, time and again, struck down legislation seeking to protect kids from purportedly dangerous new mediums,” it said. In Brown v. Entertainment Merchants Association, SCOTUS on First Amendment grounds struck down a state law that barred sale or rental of violent video games to minors without parental consent, it said.

Courts have rejected the idea that the state has the power to prevent children from hearing or saying anything without their parents’ prior consent, saying such laws don’t enforce parental authority over children’s speech and religion but instead “impose governmental authority, subject only to a parental veto,” said the brief, citing Brown.

The brief quoted a 7th Circuit U.S. Court of Appeals ruling striking down a parental consent restriction on violent video games in American Amusement Machine Association v. Kendrick: “It is obvious that [young people] must be allowed the freedom to form their political views on the basis of uncensored speech,” in part because they “are unlikely to become well-functioning, independent-minded adults and responsible citizens if they are raised in an intellectual bubble."

The Western District of Arkansas held that young people have the right to access information when it struck down a policy prohibiting high school students from checking out Harry Potter books from the school library without a signed permission statement from their legal guardian, the brief noted. It concluded that “the stigmatizing effect” of having to secure parental permission constitutes “a restriction on access.” Similarly, it said, “simply asking for their parents’ consent, even if it would be granted, may discourage some young people from exercising their First Amendment rights on social media.”