Ark. Social Media Law Would ‘Abridge’ First Amendment Rights: Injunction Ruling

Arkansas Attorney General Tim Griffin (R) is “disappointed” in Thursday’s ruling by U.S. District Judge Timothy Brooks for Arkansas in Fayetteville, granting NetChoice its preliminary injunction to block Griffin’s enforcement of SB-396, the state’s age-verification Social Media Safety Act (see 2308310068), emailed Griffin through a spokesperson Friday. NetChoice won the injunction just hours before SB-396 was to take effect early Friday.

Griffin’s statement didn’t explicitly say when or whether his office will appeal the injunction to the 8th Circuit. But he concluded: “I will continue to vigorously defend the law and protect our children, an important interest recognized in the federal judge’s order yesterday.”

NetChoice, meanwhile, looks forward “to seeing the law struck down permanently,” said Chris Marchese, director of the NetChoice Litigation Center. “If the law ultimately takes effect,” said Marchese, Arkansans “would only have access to a state-approved internet experience, and only after they hand over their private information. That is an unlawful power grab, and that’s why NetChoice is trying to stop it.”

The court said NetChoice has standing to assert a constitutional challenge to SB-396 on behalf of its members and its members’ users, said Brooks’ 50-page memorandum opinion and order. NetChoice’s arguments “are likely to succeed on the merits,” it said. NetChoice had cited SB-396's “profound First Amendment problems” and the “pressing need” for the injunction to block its enforcement (see 2308040003). Griffin had argued that NetChoice lacked standing to bring First Amendment claims on behalf of its third-party members “without first making any claims on behalf of itself” (see 2307280019).

Though an entity like NetChoice isn’t directly injured by a law, “it may nevertheless assert associational standing on behalf of its injured members,” said Brooks’ opinion. NetChoice establishes associational standing on behalf of its members “due to the non-speculative economic injury members must incur to comply” with SB-396, it said. “Economic injury associated with state regulatory requirements forms a sufficient basis for first-party standing,” it said.

If SB-396 takes effect, NetChoice’s “member entities” will have three choices, said the opinion. They could incur expenses to implement an age-verification system in compliance with the law, it said. They also could bar Arkansans from opening accounts on all regulated platforms, it said. Or they also could defend against criminal penalties and civil enforcement actions brought by the Arkansas AG, it said.

Though the state “quibbles with precisely how burdensome” SB-396 “will prove in practice,” it doesn’t deny that compliance “will impose some costs,” said the opinion. “The injuries here are sufficient to establish that NetChoice members would have standing to sue in their own right, and thereby satisfy the first prong of the associational-standing test,” it said.

On the second prong, the injunctive relief sought by NetChoice “is central to its organizational purpose” of making the internet safe for free enterprise and free expression, said the opinion. On the third prong, the resolution of NetChoice’s claims doesn’t require the individual participation of each injured party, it said.

The state had argued NetChoice lacks “prudential standing” to assert a constitutional claim on behalf of Arkansans on grounds that SB-396's regulatory requirements “unconstitutionally burden” citizens’ First Amendment rights. But the court disagrees, said the opinion. “The relationship between NetChoice members and their users is analogous to the relationship between vendors of goods and their customers,” it said. The U.S. Supreme Court “has held that vendors have prudential standing to advocate in favor of their customers’ constitutional rights when those rights are burdened by the state’s regulation of the vendor,” it said.

Concerns Not 'Speculative'

NetChoice had asserted the constitutional rights of its users and the injuries users are likely to suffer as a direct result of the state’s regulation of NetChoice’s members, said the opinion. Those concerns aren’t “speculative,” it said. The court also said NetChoice members “are well positioned to raise these concerns,” it said. “They have a thorough understanding of the content hosted on their platforms and the ways in which their customers exercise their First Amendment rights on those platforms,” it said. The court therefore concludes NetChoice “is in a unique position to advocate for the rights of Arkansas users and may appropriately do so here,” it said.

NetChoice argues SB-396 “violates the due process rights of its members because pivotal terms are unconstitutionally vague,” said the opinion. Though the “void for vagueness” doctrine often applies to criminal laws enacted under a state’s penal code, “the doctrine is applicable here,” it said.

SB-396 imposes possible criminal and civil penalties on companies that fail to comply with its requirements, and “interferes with their customers’ access to constitutionally protected speech,” said the opinion. The doctrine says regulated parties should know what’s required of them so they may act accordingly, and that precision and guidance are necessary so that those enforcing the law don’t act in an arbitrary or discriminatory way, it said.

The judge said SB-396 is “unconstitutionally vague because it fails to adequately define which entities are subject to its requirements,” said the opinion. Brooks agreed with NetChoice’s arguments, it said, noting “the actions and intentions of platform users drive whether a platform is subject to regulation.” And because the motivations of platform users are varied, it’s “impossible for companies to know whether they are subject to regulation,” it said. The court said NetChoice is likely to succeed on the merits of its vagueness claim, “and the law is likely to be unconstitutional on that basis alone,” in the opinion.

Having considered both sides’ positions on the level of constitutional scrutiny to be applied to SB-396, the court “tends to agree with NetChoice” that the age-verification restrictions in the statute that target speech based on content, speaker and viewpoint “are subject to strict scrutiny,” said the opinion. But the court won’t “reach that conclusion definitively at this early stage in the proceedings,” it said. It instead will apply “intermediate scrutiny,” as the state suggests, it said.

The court found SB-396 “burdens both adults’ and minors’ access to constitutionally protected speech,” said the opinion: The state “asserts an important governmental objective for doing so.” To withstand a challenge under intermediate scrutiny, the statute “must be narrowly tailored to avoid unduly burdening Arkansans’ First Amendment rights,” it said.

But the court finds SB-396 isn’t “narrowly tailored to address the harms” the state contends minors encounter on social media, in the opinion. The state maintains the statute’s exemptions “are meant to precisely target the platforms that pose the greatest danger to minors online, but the data do not support that claim,” it said.

'Ill Defined By the Data'

The connection between those harms and social media “is ill defined by the data,” said the opinion. One of SB-396's big flaws is that it regulates only some social media platforms and exempts many others, and it does so inconsistently, it said. For example, YouTube isn’t regulated by SB-396, yet one of the state’s exhibits discussing the dangers minors face on social media specifically cites YouTube as being the most popular online activity among children under the age of 17, it said.

If the state’s claims are accurate -- that SB-396's inclusions and exemptions were culled from data in a 2022 article published by the National Center for Missing and Exploited Children -- it appears the drafters of the statute “did not read the article carefully,” said the opinion. The article listed the names of dozens of popular platforms and noted the number of suspected incidents of child sexual exploitation that each platform self-reported in the previous year, it said.

SB-396 regulates Facebook and Instagram, the platforms with the two highest numbers of reports in the 2022 report, said the opinion. But the statute exempts Google, WhatsApp, Omegle and Snapchat, the sites with the third-, fourth-, fifth- and sixth-highest numbers of reports, it said. Nextdoor is at the very bottom of the list, with only one report of suspected child sexual exploitation all year, yet the state says Nextdoor would be subject to regulation under SB-396, it said.

The court concludes SB-396 isn’t “narrowly tailored to target content harmful to minors,” said the opinion. “It simply impedes access to content writ large,” it said. Age-verification requirements “are more restrictive than policies enabling or encouraging users (or their parents) to control their own access to information, whether through user-installed devices and filters or affirmative requests to third-party companies," it said.

NetChoice is likely to succeed on the merits of the First Amendment claim it raises on behalf of Arkansas users of member platforms, said the opinion. The state’s solution to the “very real problems associated with minors’ time spent online and access to harmful content on social media is not narrowly tailored,” it said. The statute “is likely to unduly burden adult and minor access to constitutionally protected speech,” it said. If the Arkansas legislature’s goal in passing SB-396 was to protect minors from materials or interactions that could harm them online, there’s “no compelling evidence” the statute “will be effective in achieving those goals,” it said.

Since SB-396 contains terms too vague “to be reasonably understood,” NetChoice members are likely to suffer irreparable harm if the statute takes effect, and that weighs heavily in favor of an injunction, said the opinion. It’s unclear which NetChoice members will be subject to regulation, and several terms that are pivotal to NetChoice members’ compliance with the statute “are undefined or subject to multiple interpretations,” it said.

SB-396 also is likely to “abridge” the First Amendment rights of users of NetChoice’s members’ platforms, “which will cause those users to suffer irreparable harm,” said the opinion: “No legal remedy exists to compensate Arkansans for the loss of their First Amendment rights.”