• by Wendy Davis , Staff Writer @wendyndavis, April 13, 2023

Arkansas this week became the second state to restrict the use of social media platforms by teens.

“For years, social media companies have gotten away with exploiting kids for profit. Not anymore,” Governor Sarah Huckabee Sanders wrote Wednesday in a Twitter post announcing that she had signed a statute banning people under 18 from most large social media platforms, without parental consent.

The new law also explicitly requires social media platforms to verify the ages of all users. Unless blocked by the courts, the measure will take effect in September.

The law's provisions apply to most social media platforms controlled by companies with more than $100 million in annual revenue, but a last-minute amendment appears to exempt Google's YouTube.

That amendment excludes companies that offer educational “enterprise collaboration tools” for kindergarten through grade 12, and that derive less than 25% of total company revenue from operating a social platform.

The Arkansas law, like a similar one in Utah, is all but certain to face a challenge in court by the tech industry as well as digital rights advocates, who argue both bills violate the First Amendment.

“Anonymous communications have an important place in our political and social discourse, and the Supreme Court has ruled repeatedly that the right to anonymous free speech is protected by the First Amendment,” the digital rights group Electronic Frontier Foundation wrote to Utah Governor Spencer Cox last month, in an unsuccessful effort to convince him to veto his state's bill.

“Requiring that all users in Utah tie their accounts to their age, and ultimately, their identity, will lead to fewer people expressing themselves, or seeking information online,” the group added.

NetChoice and others have also repeatedly noted that minors have well established First Amendment rights -- including the right to access information. As recently as 2011, the Supreme Court voted 7-2 to strike down a California law that banned the sale of violent video games to minors, without parental consent.

Justice Antonin Scalia, who authored the opinion in that case, wrote that the government doesn't have a “free-floating power to restrict the ideas to which children may be exposed.

He added that basic free speech principles “do not vary when a new and different medium for communication appears.”

It's not just red states that are attempting to regulate teens' use of social media. California also recently passed the Age-Appropriate Design Code, which could encourage tech companies to filter posts that are protected by the First Amendment.

Specifically, that law requires online companies likely to be accessed by users under 18 to prioritize their “best interests” and “well-being."

NetChoice, which is suing to block the law, argued in court papers that terms like “best interests,” “well-being” and “harmful” are subjective -- which will lead companies to err on the side of suppression.