Ark. AG Defends Social Media Age Verification Law on First Amendment Grounds

Arkansas Attorney General Tim Griffin (R) denies NetChoice’s allegations that SB-396, the state’s social media age verification law, is unconstitutional on First Amendment grounds (see 2306300001), said his answer Wednesday (docket 5:23-cv-05105) in U.S. District Court for Western Arkansas in Fayetteville. NetChoice seeks a preliminary injunction to bar Griffin from enforcing the measure when it takes effect Sept. 1.

Griffin denies NetChoice’s allegation that SB-396's “private enforcement mechanism” creates a First Amendment problem, said his answer. He also denies the measure “discriminates based on speaker or content,” or it draws “arbitrary lines” between content that’s permissible for viewing by minors and content that isn’t, he said. SB-396 doesn’t discriminate based on viewpoints, he said.

The AG denies SB-396 “should be reviewed under heightened scrutiny, and that it can’t survive that heightened scrutiny, said his answer. SB-396 isn’t “overinclusive,” nor does it “impinge” upon teenagers’ First Amendment rights, it said. He denies the measure is “overbroad,” or it fails “constitutional scrutiny,” it said. SB-396 is neither “overinclusive” nor “underinclusive,” nor does it chill adults’ First Amendment rights, it said.

Griffin denies SB-396 is unconstitutionally vague or fails “to provide a person of ordinary intelligence with fair notice of what is prohibited” under the law, said his answer. SB-396 isn’t so vague that companies can’t know how to apply it, or that it leaves companies “unsure whether it applies to them,” it said. He denies SB-396 conflicts with or is federally preempted by the Children's Online Privacy Protection Act, it said.

SB-396 doesn’t violate the Constitution's commerce clause, said Griffin’s answer. NetChoice isn’t entitled “to any of the relief requested,” it said. Griffin “affirmatively asserts” that the Western District of Arkansas lacks subject-matter jurisdiction over NetChoice’s claims, it said. NetChoice also lacks standing to bring the complaint and fails “to state facts upon which relief can be granted,” Griffin said.