NetChoice Again Seeks Summary Judgment vs. Ark. Social Media Safety Law

NetChoice is seeking summary judgment for a second time as it aims to permanently block SB-396, Arkansas’ age verification Social Media Safety Act. The law violates the First Amendment and is unconstitutionally vague, the association’s brief said Friday (docket 5:23-cv-05105) in U.S. District Court for Western Arkansas in Fayetteville.

U.S. District Judge Timothy Brooks granted Arkansas Attorney General Tim Griffin (R) limited discovery in March into whether the law is a narrowly tailored means of addressing the state’s asserted interest in protecting children from sexual predators on the internet (see 2403250011). “But far from helping the state’s case, discovery has only confirmed that the law is not remotely tailored,” NetChoice’s brief said.

SB-396 is “vastly overinclusive” because it burdens an “unfathomable” amount of First Amendment activity, according to the brief. It restricts minors and adults from accessing services such as NetChoice members Facebook and X, “even if all they want to do is watch church services or share pictures of their latest travels,” it said.

Moreover, the law is vastly “underinclusive” because it includes a “parade of exceptions” for gaming platforms and direct messaging services “that the state’s own evidence suggests are more prone to abuse than some of the online services the law covers,” said the brief. Arkansas also has never addressed “the mountain of precedent refuting its position,” it said. For instance, the state lacks an answer to the U.S. Supreme Court’s 2017 decision in Packingham v. North Carolina, “which struck down a state law that prohibited convicted sex offenders from accessing social media as a violation of the First Amendment,” it said.

If restricting a limited group of convicted sex offenders from accessing social media isn’t a narrowly tailored means of protecting children on the internet, it’s hard to see “how restricting the entire universe of minors from accessing social media is a narrowly tailored way to achieve the state’s goals,” the brief said. Nor does the state have an answer to Brown v. Entertainment Merchants Association, it argued.

That 2011 SCOTUS decision held that an effort to protect minors from purportedly harmful content is underinclusive when the state is perfectly willing to let minors access the same content so long as one parent approves, the NetChoice brief said. Since Brooks issued his preliminary injunction opinion Aug. 31 temporarily blocking SB-396 (see 2309010024), Arkansas’ defense of the law “has only gotten more difficult,” it said. That’s because another district court concluded in February that a similar parental consent law in Ohio likely violates the First Amendment and the due process clause (see 2402130041), it said.

“At bottom,” Arkansas seeks to impose its own judgments about what’s appropriate for minors, said the NetChoice brief. But case after case makes clear that decisions about what content minors should see are for the individual to make, not for the government to decree, it said. Because SB-396 “is just as unconstitutional now” as it was 10 months ago, the court should grant summary judgment to NetChoice and “permanently enjoin the state from enforcing it,” it said.