• by Wendy Davis , 8 hours ago

Arkansas on Wednesday asked a federal appeals court to allow enforcement of a law that would prohibit social media platforms from using algorithms or design features that could "cause" a user to commit suicide, buy drugs, develop an eating disorder, or become addicted to social media.

The law was blocked late last year by U.S. District Court Judge Timothy Brooks in Fayetteville, who wrote in a 33-page ruling that the prohibitions "clearly impose content-based restrictions on speech."

He ruled that the tech group NetChoice, which sued over the law, "has shown that it is likely to prevail on its First Amendment claim" and that "its members are likely to suffer irreparable harm" if the law takes effect.

Arkansas Attorney General Tim Griffin is now urging the 8th Circuit Court of Appeals to lift the injunction for several reasons. Among other arguments, Griffin contends that the law regulates "conduct" -- meaning features such as videos that play automatically -- not speech.

The attorney general made similar arguments to Brooks, writing: "If a social media platform knows based on its research and development that implementing a particular feature will cause users to develop an eating disorder or commit suicide, then it cannot implement that feature -- regardless of whether the feature is simply a different type of 'like' button, an AI-algorithm pushing certain types of content, or sending notifications after a certain time of night."

Brooks not only rejected that theory, but also suggested that the argument bolstered NetChoice's claim that the statute was content-based.

"A law that prohibits platforms from pushing 'certain types of content' but allows them to push other types of content is a content-based law," Brooks wrote when he enjoined enforcement.

Griffin is also arguing to the 8th Circuit that Brooks failed to analyze how every provision of the law would affect various social platforms. Instead, according to the attorney general, the judge "considered only a few examples of the addiction provision’s applications."

In addition, Griffin says NetChoice -- which counts large tech companies including Meta and Google as members -- lacks "standing" to challenge the law on behalf of its members. Instead, according to Griffin, NetChoice's members or their users are the only ones in a position to sue over the law.

Last year, Brooks permanently blocked a different Arkansas law that would have required social platforms to verify users' ages, and prohibited teens under 18 from having social media accounts without parental permission, ruling that the law violates the First Amendment.

The state attorney general is also appealing that decision to the 8th Circuit.

Arkansas is one of numerous states to recently pass laws restricting social platforms. NetChoice has sued over those laws in at least 10 other states including California, Maryland, Louisiana, Georgia, Florida, Mississippi, Utah, Ohio, Texas and Tennessee. Most district court judges have blocked all or part of those measures, but state attorneys general have appealed. So far, the 5th Circuit and 11th Circuit have sided with state officials and allowed laws in Mississippi and Florida to take effect, while the 9th Circuit said in a mixed ruling that portions of a California law could go into effect.