Delay of Summary Judgment Ruling vs. Ark. Social Media Law ‘Unjustified': NetChoice

NetChoice opposes as unjustifiable the Nov. 30 motion of Arkansas Attorney General Tim Griffin (R) to deny NetChoice’s motion for summary judgment against SB-396, the state’s age-verification Social Media Safety Act, or at least delay consideration of it until discovery is complete (see 2312010039), said NetChoice’s opposition brief Monday (docket 5:23-cv-05105) in U.S. District Court for Western Arkansas in Fayetteville.

Though Arkansas now has had two written opportunities, plus a full hearing, the state still can’t justify its request to defer consideration of NetChoice’s pending summary judgment motion to allow time for discovery, said the brief. In its initial motion, the state claimed it needs discovery on the compliance costs associated with SB-396, the social media parental controls offered by third parties and NetChoice members’ “own efforts to protect minors who use their online services,” it said.

But as became clear at the Nov. 30 hearing, there’s “plainly no need” for discovery on compliance costs because the state “concedes the existence of at least some such costs,” said the brief. That “suffices to establish” Article III standing, regardless of the “precise amount” of the compliance costs, it said: “That likely explains why the state makes no mention of compliance costs in its supplemental brief.”

Nor does the state’s supplemental brief “make any mention of third-party discovery on existing parental controls,” said the brief. It also fails to take the court up “on the opportunity to elucidate exactly what facts the state could hope to elicit from such discovery or how they could enable it to avoid summary judgment,” it said. That’s because “no such facts exist,” it said.

That leaves only the state’s request to take discovery from NetChoice members on their own child-safety efforts, said the brief. “But here too, the state continues to fail to identify exactly what it seeks,” it said. Such “generalities” are neither responsive to the court’s request for greater specificity, nor “anywhere close to sufficient” to satisfy Federal Rule of Civil Procedure 56(d), it said. When a nonmoving party like Arkansas finds that it can't present facts essential to oppose summary judgment, Rule 56(d) enables that party to submit an affidavit that asks the court for additional time for discovery.

To the extent the state identifies anything remotely specific, “it fails to explain how the discovery it seeks could enable it to resist NetChoice’s motion for summary judgment,” said the brief. SB-396 “remains both unconstitutionally vague and a radically overbroad restriction” on First Amendment-protected speech, regardless of what child-safety measures covered social media services have adopted “and how effective they are,” it said.

The state’s “insistence” it needs discovery from NetChoice members to determine post hoc whether its decision to regulate them was justified “adds First Amendment insult to First Amendment injury,” said the brief. Legislatures “are supposed to answer questions like that before they resort to draconian restrictions on constitutionally protected rights,” it said. They shouldn’t force parties that challenge such restrictions “to submit to burdensome discovery in which government attorneys attempt to do the legislature’s work for it after the fact,” it said.

The court has been “more than fair” to the state, affording it every opportunity to comply with Rule 56(d)’s requirements, and demonstrate that the facts it seeks in discovery are essential to resist NetChoice’s summary judgment motion, said the brief. The state simply hasn’t “carried its burden,” it said. It hasn’t even provided a signed affidavit, much less made the “substantive showing that Rule 56(d) requires,” it said. Postponement of a ruling on the motion for summary judgment is “unjustified,” it said.