Judge blocks Arkansas social media law

A federal judge granted a preliminary injunction blocking a landmark Arkansas law that would require kids to get their parents’ permission to have a social media account, just hours before the law was set to take effect.

U.S. District Judge Timothy Brooks’s order issued late Thursday represents a significant, if only initial, victory for NetChoice, a leading tech industry group that sued the state of Arkansas in June to overturn the law.

The injunction puts the law on hold while the lawsuit makes its way through the courts. It also serves as a potential caution flag to other states that have adopted or are considering adopting similar social media laws. 

In a statement Thursday, NetChoice praised the judge’s decision.

“We’re pleased the court sided with the First Amendment and stopped Arkansas’ unconstitutional law from censoring free speech online and undermining the privacy of Arkansans, their families and their businesses as our case proceeds,” said Chris Marchese, Director of the NetChoice Litigation Center in a statement. “We look forward to seeing the law struck down permanently.”

Arkansas Attorney General Tim Griffin (R), in a brief statement, said: “I am disappointed in the ruling, but I will continue to vigorously defend the law and protect our children, an important interest recognized in the federal judge’s order today.” 

In his order, Judge Brooks called the state’s goal of protecting youth online “admirable,” but said “the governmental interest in protecting children does not justify an unnecessarily broad suppression of speech addressed to adults.” 

The ACLU of Arkansas and the Electronic Frontier Foundation also opposed the law on constitutional grounds.

The Arkansas law, known as the Social Media Safety Act, requires certain large social media platforms to verify the age of users and bars them from allowing minors to open an account unless a parent or guardian signs off.

Under the law, the age-verification process must be conducted by a third-party vendor and requires that users provide a digital copy of their driver’s license or other government-issued ID. Companies can also use any “commercially reasonable” method of age verification.

Companies that fail to comply with the law would face a $2,500 fine per violation.

In signing the law last April, Arkansas Gov. Sarah Huckabee Sanders (R) said, “While social media can be a great tool and a wonderful resource it can have a massive negative impact on our kids.”

In its lawsuit, NetChoice argued the law is unconstitutionally vague about to whom it applies, and that it violates First Amendment rights to free speech. In granting the preliminary injunction, Brooks found that NetChoice’s arguments “are likely to succeed on the merits.”

The judge zeroed in on the multiple exemptions in the law which he wrote “all but nullify the State’s purposes” and appear to carve out multiple online platforms, including YouTube, which 95% of teens ages 13 to 17 have used, according to a Pew Research Center survey.  

“Age-gating social media platforms for adults and minors does not appear to be an effective approach when, in reality, it is the content on particular platforms that is driving the State’s true concerns,” Brooks wrote.

Arkansas is one of a handful of states, including Utah and Louisiana, where lawmakers this year passed parental permission laws. The state-level efforts came in response to federal inaction and growing concerns about the impact of social media on youth mental health.

While Utah lawmakers passed the first social media parental permission law in March, the Arkansas law had an earlier effective date making it vulnerable to legal challenge.

In its lawsuit, NetChoice — whose members include Meta, Snap Inc., TikTok and X, formerly known as Twitter – argued that the Arkansas law violates the free speech rights of youth and adults alike and “is the latest attempt in a long line of government efforts to restrict new forms of expression based on concerns that they harm minors.”

The lawsuit gave the example of a California law barring the sale of violent video games to minors that the U.S. Supreme Court struck down in 2011. 

“By restricting the access of minors – and adults (who now have to prove their age) – to these ubiquitous online services, Arkansas has ‘with on broad stroke’ burdened access to what for many are the principal sources for speaking and listening, learning about current events ‘and otherwise exploring the vast realms of human thought and knowledge,” NetChoice’s complaint said. 

Surveys have shown most teens have access to social media and a 2022 Pew survey found that 67% of teens ages 13 to 17 had used TikTok, the most popular social media app among youth.

The ACLU and EFF, which filed an amicus brief in the case, argued that the Arkansas law “stifles freedom of expression online” and “threatens the free speech rights of all Arkansans.”

In a court filing opposing the preliminary injunction, the attorney general’s office argued that “[t]he mix of minors and social media is decidedly bad” and that the parental notification requirement is no different than laws that restrict youth access to bars or casinos.

“The Social Media Safety Act of 2023 follows in those footsteps to address a new frontier, protecting minors from the harmful and predatory environments of social media,” the state’s motion said. 

The state of Arkansas also maintained that the law regulates “nonexpressive conduct” but not speech. The judge concluded otherwise, writing that the law “is likely to unduly burden adult and minor access to constitutionally protected speech.”

NetChoice is also seeking to block California’s first-in-the-nation Age-Appropriate Design Code law from taking effect next year. That law requires heightened privacy protections and design standards for platforms that are likely to draw youth users. 

A decision on NetChoice’s motion for a preliminary injunction in that case is pending following a hearing in federal court in San Jose in July.