NetChoice Summary Judgment Motion vs. Ark. Social Media Law Is ‘Premature,’ Says AG

The office of Arkansas Attorney General Tim Griffin (R) wants U.S. District Judge Timothy Brooks for Western Arkansas in Fayetteville to deny NetChoice’s Nov. 28 motion for summary judgment against SB-396, the state’s age-verification Social Media Safety Act (see 2311290005), or at least delay consideration of it until discovery is complete, said its motion Thursday (docket 5:23-cv-05105).

Besides seeking summary judgment in its favor, NetChoice wants the judge to enter a declaratory judgment that SB-396 is “facially unconstitutional,” and to convert the preliminary injunction he issued Aug. 31 against enforcement of the statute into a permanent one. But Griffin’s office thinks NetChoice’s summary judgment motion is “premature,” said its own motion to deny or defer. “Discovery is necessary” to probe “the truth of the assertions NetChoice makes” in its “statement of undisputed facts” that accompanied the motion for summary judgment, said the AG’s office.

No discovery has been conducted in this case, and NetChoice “wants to keep it that way,” said the AG office’s motion. Though NetChoice doesn’t want the AG’s office to have a chance to use the discovery process, “it relies on many facts to make its arguments,” it said. But those are facts that the AG’s office has had no “opportunity to scrutinize,” it said.

NetChoice’s statement of undisputed facts contains three categories of “factual assertions” that the AG’s office “deserves to evaluate through the discovery process,” said its motion. Included in the statement are assertions about the high compliance costs associated with SB-396, plus about the services offered by NetChoice members and nonmembers to protect children from harmful online material, it said. The AG’s office “requires discovery to determine the validity of these assertions,” it said.

Despite NetChoice’s asserted facts, its own members “realize the necessity of laws” like SB-396, said the AG’s motion. NetChoice member Meta, only weeks before NetChoice’s motion for summary judgment, asked Congress to require app stores to verify the ages of individuals that download its app, it said. In other words, NetChoice’s members realize SB-396 is a good idea, “but they just don’t want to do the actual work of protecting children,” it said.

The judge responded Thursday with a text-only order instructing the AG’s office to file a supplemental brief by Friday detailing with “more specificity” which of NetChoice’s asserted facts it disputes and why those facts are “material” to NetChoice’s “facial challenges” to SB-396. NetChoice’s response to the AG’s supplemental brief is due Dec. 18, said the order. The AG’s deadline to respond to NetChoice’s motion for summary judgment will be held in abeyance while the court rules on the motion to deny or defer consideration, it said.