• by Wendy Davis  @wendyndavis, August 3, 2023

The tech industry group NetChoice is pressing a federal judge to strike down a new Arkansas law that requires most large platforms to verify users' ages and prevent minors from holding accounts without parental consent.

Arkansas Senate Bill 396 “is riddled with content-, speaker-, and even viewpoint-discriminatory provisions and is hopelessly vague,” NetChoice writes in papers filed Thursday with U.S. District Court Judge Timothy Brooks in Fayetteville.

“Every equitable factor supports enjoining this law before it inflicts irreparable injury,” the group adds.

The law, passed earlier this year, will take effect September 1 unless blocked by a court. Texas and Utah recently enacted similar statutes, but the Arkansas measure is slated to go into effect first.

The Arkansas restrictions apply to most social-media platforms that are controlled by companies with more than $100 million in annual revenue, but a last-minute amendment appears to have exempted Google.

NetChoice, which sued in June to block enforcement, argues that the law violates the First Amendment.

The organization said in court filings that other laws attempting to prevent minors from accessing a range of content -- including books, movies, television, rock music and video games -- have been struck down as unconstitutional.

For instance, the group noted, the Supreme Court in 2011 invalidated a California law that banned the sale of violent video games to minors, without parental consent. The court said in that case that minors have First Amendment rights to access non-obscene material.

The civil rights groups Electronic Frontier Foundation and American Civil Liberties Union are backing NetChoice's request, arguing in a friend-of-the-court brief that the law “will rob people of anonymity, deter privacy- and security-minded users, and block some individuals from accessing the largest social media platforms at all.”

Those groups added that requiring parental consent to access social media will violate young people's rights “to access information and express themselves online.”

Arkansas officials defended the measure by arguing that it is comparable to laws that ban minors from venues like bars and casinos.

“Throughout our nation’s history, governments have designated certain areas that are not appropriate for minors to occupy,” Arkansas Attorney General Tim Griffin wrote in papers opposing the request for an injunction.

“From bars to casinos, state and local governments have regulated minors’ access to such establishments, due to the potentially harmful nature of what lies inside,” Griffin added. “The Social Media Safety Act of 20231 follows in those footsteps to address a new frontier, protecting minors from the harmful and predatory environments of social media.”

NetChoice counters that there is “an obvious difference between laws restricting access to such establishments and laws that restrict access to services dedicated to disseminating speech.”

The organization adds that laws banning minors from entering casinos or bars serve the government's interest in “preventing minors from engaging in non-speech activities like drinking and gambling.”

NetChoice also argues the law represents a form of content discrimination, because it only applies to some social platforms.

“The Act restricts minors from accessing Instagram and Twitter, but not smaller services like Parler, Gab, and Truth Social,” the group writes.

“Such distinctions are inherently dangerous, as they tend to skew public debate,” NetChoice adds. “A law that singles out the New York Times and the Washington Post but not the Wall Street Journal or the New York Post may skew debate regardless of why that distinction was drawn. So too of a law that burdens Twitter but not Mastodon.”