• by Wendy Davis , Staff Writer @wendyndavis, September 5, 2023

A new Arkansas law requiring social platforms to verify users' ages and prohibiting teens under 18 from having social-media accounts without parental permission likely violates the First Amendment rights of adults as well as teens.

That's according to U.S. District Court Judge Timothy Brooks in Fayetteville, Arkansas, who late last week blocked enforcement of the legislation.

“It is likely that many adults who otherwise would be interested in becoming account holders on regulated social media platforms will be deterred -- and their speech chilled -- as a result of the age-verification requirements,” Brooks wrote in a 50-page ruling.

He added that the law also probably infringes teens' First Amendment rights because it “bars minors from opening accounts on a variety of social media platforms, despite the fact that those same platforms contain vast quantities of constitutionally protected speech.”

The ruling came in a lawsuit brought by the tech association NetChoice, which sued to block the Arkansas bill.

The measure, passed in April, would have applied to social-media platforms controlled by companies with more than $100 million in annual revenue, except for YouTube, which was exempted thanks to a last-minute amendment.

The bill also excluded numerous platforms with less than $100 million in revenue -- including Discord, Gab and Truth Social.

NetChoice noted in its lawsuit that other efforts to restrict teens' access to entertainment and media have been invalidated in court.

“Books, movies, television, rock music, video games, and the Internet have all been accused in the past of exposing youth to content that has deleterious effects,” the group wrote, adding that laws attempting to prevent minors from accessing that material “have reliably and repeatedly been struck down.”

In one of the most recent examples, the Supreme Court in 2011 nullified a California law that would have banned the sale of violent video games to minors without parental consent. The justices reiterated in that case that minors have First Amendment rights to access non-obscene material.

Arkansas isn't the only state to attempt to limit teens' ability to access social media. Utah, Texas and California have also attempted to regulate minors' ability to find information online.

Utah, like Arkansas, banned teens under 18 from using social media without parental permission. In Texas, the legislature banned platforms from serving underage users with “harmful” content.

In California, the legislature passed a so-called “age-appropriate design code” that requires online companies likely to be accessed by users under 18 to prioritize their “best interests” and “well-being."

NetChoice has also sued to block the California law, arguing the statute violates the First Amendment.

The New York Times Company and Student Press Law Center agree with NetChoice. Those groups recently argued in a friend-of-the-court brief that the California law will limit teens' ability to access content.

"The clear and natural effect of the Act is that online publishers, including mainstream news websites, either must submit to content-based regulation, or they must substantially curtail young people's access," the press groups argued recently.

The Utah and Texas restrictions on social media are all but certain to also face challenges.

While there's no telling for sure how judges will rule in those states, the Arkansas decision suggests that restrictions on adults' and minors' ability to access constitutionally protected speech online are likely to face hurdles, Chris Marchese, litigation center director at NetChoice, tells MediaPost.

He adds that the arguments could differ slightly, because the laws themselves aren't identical.

“The analysis in Utah will likely be slightly different than in Texas,” he says. “But I would assume that minors' rights would come up in both of those contexts.”

Any potential legal challenges will be heard in different jurisdictions, which could result in contradictory rulings. If so, expect the Supreme Court to decide whether states can legally prevent teens from using platforms like Facebook and Instagram.