NetChoice, LLC v. Griffin
This text of NetChoice, LLC v. Griffin (NetChoice, LLC v. Griffin) is published on Counsel Stack Legal Research, covering District Court, W.D. Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS FAYETTEVILLE DIVISION
NETCHOICE, LLC PLAINTIFF
V. CASE NO. 5:23-CV-05105
TIM GRIFFIN, in his Official Capacity as Attorney General of Arkansas DEFENDANT
MEMORANDUM OPINION AND ORDER
1 TABLE OF CONTENTS
I. INTRODUCTION ...................................................................................................... 3
II. BACKGROUND ....................................................................................................... 5
A. The Social Media Safety Act: Objectives and Requirements .................. 5
B. Social Media Use Among Minors ............................................................. 10
C. Types of Speech Available on NetChoice Members’ Platforms ............ 13
D. Existing Parental Controls ........................................................................ 15
III. LEGAL STANDARD .............................................................................................. 20
IV. DISCUSSION ......................................................................................................... 21
A. Standing ..................................................................................................... 21
1. Constitutional Standing ...................................................................... 22
2. Prudential Standing ............................................................................ 25
B. Likelihood of Success on the Merits ........................................................ 30
1. Void for Vagueness: NetChoice Members’ Claim ........................... 30
2. Burdens on First Amendment Rights: Platform Users’ Rights ....... 35
a. Level of Scrutiny .......................................................................... 35
b. Burdens on Adults’ Access to Speech ....................................... 39
c. Burdens on Minors’ Access to Speech ...................................... 40
d. Narrow Tailoring ........................................................................... 41
C. Irreparable Harm ........................................................................................ 48
D. Balance of the Equities and the Public Interest ...................................... 49
V. CONCLUSION ....................................................................................................... 49
2 I. INTRODUCTION
This case presents a constitutional challenge to Arkansas Act 689 of 2023, the
“Social Media Safety Act” (“Act 689”), a new law that aims to protect minors from harms
associated with the use of social media platforms. Act 689—which becomes effective
tomorrow, September 1, 2023—requires social media companies to verify the age of all
account holders who reside in Arkansas. Self-reporting one’s age (a common industry
practice) is not sufficient; Arkansans must submit age-verifying documentation before
accessing a social media platform.
Under Act 689, a “social media company,” as defined in the Act, must outsource
the age-verification process to a third-party vendor. A prospective user of social media
must first prove their age by uploading a specified form of identification, such as a driver’s
license, to the third-party vendor’s website. A verified adult may obtain a social media
account. Minors, however, will be denied an account and prohibited from accessing
social media platforms, unless a parent provides express consent—which will require
more proof to confirm the parent’s age, identity, and relationship to the minor.
The Plaintiff, NetChoice, LLC, is an Internet trade association whose members
include Facebook, Instagram, Twitter, TikTok, Snapchat, Pinterest, and Nextdoor.
NetChoice asks the Court to preliminarily enjoin Act 689 from taking effect. NetChoice
does not dispute that social media usage poses risks to minors’ physical and mental well-
being. Rather, NetChoice claims the Social Media Safety Act does not provide a
constitutional way to address the dangers that minors face online. According to
NetChoice, Act 689 is unconstitutionally vague because it is impossible to determine
3 which social media companies and platforms fall within its purview. In addition,
NetChoice contends Act 689 violates Arkansans’ First Amendment rights. NetChoice
argues that Act 689’s age-verification requirements are not narrowly tailored to address
the harms that minors may face on social media, while at the same time placing an undue
burden on both adults’ and minors’ access to constitutionally protected speech.
The Defendant (the “State”) is Arkansas Attorney General Tim Griffin, who is sued
in his official capacity, because his office is tasked to enforce Act 689 on behalf of the
State of Arkansas. The State maintains that Act 689 is a constitutional way to curtail
minors’ access to social media platforms. The State contends that Act 689 is narrowly
tailored to address the harms posed by social media, while the alleged burdens are
neither too costly for NetChoice members nor too intrusive for Arkansans who wish to
open social media accounts. The State concedes that social media platforms host a wide
range of protected free speech, but it contends that the slight burden to protected speech
is justified by the important goal of protecting minors.
NetChoice’s Motion for Preliminary Injunction was fully briefed by the parties, see
Docs. 17, 18, 34, 38, and the ACLU submitted an amicus brief in support of NetChoice’s
position, see Doc. 31. In its response, the State lead with an argument that NetChoice
lacks standing to assert the First Amendment rights of Arkansas social media users. The
Court ordered additional briefing on this issue. See Docs. 39–41.
On August 15, the Court held an evidentiary hearing. The parties introduced
documentary evidence, witness declarations, and stipulations of fact. The State also
4 presented the live testimony of its expert witness, Tony Allen. Afterwards, the Court
engaged counsel in a lengthy period of oral argument.
Having taken these matters under advisement, the Court now concludes that
NetChoice has standing to assert a constitutional challenge to Act 689 on behalf of its
members and its members’ users. Therefore, for the reasons explained below, the Court
finds that NetChoice’s arguments are likely to succeed on the merits and its request for a
Preliminary Injunction is GRANTED.
II. BACKGROUND
A. The Social Media Safety Act: Objectives and Requirements
According to Act 689, “social media compan[ies]” will be required to “verify the
age[s] of . . . account holder[s]” using the age-verification methods sanctioned by the
State. See Ark. Code Ann. § 4-88-1102(b)(1). 1 Further, the regulated companies “shall
not permit an Arkansas user who is a minor to be an account holder . . . unless the minor
has the express consent of a parent or legal guardian.” Id. at § 1102(a).
Not every online company or platform will be subject to the State’s new age-
verification requirements. Under Act 689, a “social media company” is defined in terms of
what account holders may do on the company’s platform. A “social media company” is
one that permits its account holders to: (1) create a public profile “for the primary
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS FAYETTEVILLE DIVISION
NETCHOICE, LLC PLAINTIFF
V. CASE NO. 5:23-CV-05105
TIM GRIFFIN, in his Official Capacity as Attorney General of Arkansas DEFENDANT
MEMORANDUM OPINION AND ORDER
1 TABLE OF CONTENTS
I. INTRODUCTION ...................................................................................................... 3
II. BACKGROUND ....................................................................................................... 5
A. The Social Media Safety Act: Objectives and Requirements .................. 5
B. Social Media Use Among Minors ............................................................. 10
C. Types of Speech Available on NetChoice Members’ Platforms ............ 13
D. Existing Parental Controls ........................................................................ 15
III. LEGAL STANDARD .............................................................................................. 20
IV. DISCUSSION ......................................................................................................... 21
A. Standing ..................................................................................................... 21
1. Constitutional Standing ...................................................................... 22
2. Prudential Standing ............................................................................ 25
B. Likelihood of Success on the Merits ........................................................ 30
1. Void for Vagueness: NetChoice Members’ Claim ........................... 30
2. Burdens on First Amendment Rights: Platform Users’ Rights ....... 35
a. Level of Scrutiny .......................................................................... 35
b. Burdens on Adults’ Access to Speech ....................................... 39
c. Burdens on Minors’ Access to Speech ...................................... 40
d. Narrow Tailoring ........................................................................... 41
C. Irreparable Harm ........................................................................................ 48
D. Balance of the Equities and the Public Interest ...................................... 49
V. CONCLUSION ....................................................................................................... 49
2 I. INTRODUCTION
This case presents a constitutional challenge to Arkansas Act 689 of 2023, the
“Social Media Safety Act” (“Act 689”), a new law that aims to protect minors from harms
associated with the use of social media platforms. Act 689—which becomes effective
tomorrow, September 1, 2023—requires social media companies to verify the age of all
account holders who reside in Arkansas. Self-reporting one’s age (a common industry
practice) is not sufficient; Arkansans must submit age-verifying documentation before
accessing a social media platform.
Under Act 689, a “social media company,” as defined in the Act, must outsource
the age-verification process to a third-party vendor. A prospective user of social media
must first prove their age by uploading a specified form of identification, such as a driver’s
license, to the third-party vendor’s website. A verified adult may obtain a social media
account. Minors, however, will be denied an account and prohibited from accessing
social media platforms, unless a parent provides express consent—which will require
more proof to confirm the parent’s age, identity, and relationship to the minor.
The Plaintiff, NetChoice, LLC, is an Internet trade association whose members
include Facebook, Instagram, Twitter, TikTok, Snapchat, Pinterest, and Nextdoor.
NetChoice asks the Court to preliminarily enjoin Act 689 from taking effect. NetChoice
does not dispute that social media usage poses risks to minors’ physical and mental well-
being. Rather, NetChoice claims the Social Media Safety Act does not provide a
constitutional way to address the dangers that minors face online. According to
NetChoice, Act 689 is unconstitutionally vague because it is impossible to determine
3 which social media companies and platforms fall within its purview. In addition,
NetChoice contends Act 689 violates Arkansans’ First Amendment rights. NetChoice
argues that Act 689’s age-verification requirements are not narrowly tailored to address
the harms that minors may face on social media, while at the same time placing an undue
burden on both adults’ and minors’ access to constitutionally protected speech.
The Defendant (the “State”) is Arkansas Attorney General Tim Griffin, who is sued
in his official capacity, because his office is tasked to enforce Act 689 on behalf of the
State of Arkansas. The State maintains that Act 689 is a constitutional way to curtail
minors’ access to social media platforms. The State contends that Act 689 is narrowly
tailored to address the harms posed by social media, while the alleged burdens are
neither too costly for NetChoice members nor too intrusive for Arkansans who wish to
open social media accounts. The State concedes that social media platforms host a wide
range of protected free speech, but it contends that the slight burden to protected speech
is justified by the important goal of protecting minors.
NetChoice’s Motion for Preliminary Injunction was fully briefed by the parties, see
Docs. 17, 18, 34, 38, and the ACLU submitted an amicus brief in support of NetChoice’s
position, see Doc. 31. In its response, the State lead with an argument that NetChoice
lacks standing to assert the First Amendment rights of Arkansas social media users. The
Court ordered additional briefing on this issue. See Docs. 39–41.
On August 15, the Court held an evidentiary hearing. The parties introduced
documentary evidence, witness declarations, and stipulations of fact. The State also
4 presented the live testimony of its expert witness, Tony Allen. Afterwards, the Court
engaged counsel in a lengthy period of oral argument.
Having taken these matters under advisement, the Court now concludes that
NetChoice has standing to assert a constitutional challenge to Act 689 on behalf of its
members and its members’ users. Therefore, for the reasons explained below, the Court
finds that NetChoice’s arguments are likely to succeed on the merits and its request for a
Preliminary Injunction is GRANTED.
II. BACKGROUND
A. The Social Media Safety Act: Objectives and Requirements
According to Act 689, “social media compan[ies]” will be required to “verify the
age[s] of . . . account holder[s]” using the age-verification methods sanctioned by the
State. See Ark. Code Ann. § 4-88-1102(b)(1). 1 Further, the regulated companies “shall
not permit an Arkansas user who is a minor to be an account holder . . . unless the minor
has the express consent of a parent or legal guardian.” Id. at § 1102(a).
Not every online company or platform will be subject to the State’s new age-
verification requirements. Under Act 689, a “social media company” is defined in terms of
what account holders may do on the company’s platform. A “social media company” is
one that permits its account holders to: (1) create a public profile “for the primary
purpose of interacting socially with other profiles and accounts”; (2) upload or post
1 All citations to Act 689 in this Opinion refer to particular subsections of Chapter 88,
Subchapter 11 of the Arkansas Code. For brevity’s sake, the Court will cite only to the subsection, e.g., “Act 689 at § 1102(b)(1).”
5 content; (3) view content of other account holders; and (4) interact with other account
holders “through request and acceptance.” Id. at § 1101(7)(A) (emphasis added). The
State offers no guidance on how it will assess the “primary purpose” of account holders.
Furthermore, Act 689 specifically exempts any company that “[d]erives less than twenty-
five percent (25%) of [its] revenue from operating a social media platform” and “[o]ffers
cloud storage services.” Id. at § 1101(7)(B)(iv)(a)–(b). This exemption shields Google (a
subsidiary of Alphabet, Inc.) from compliance. Neither Google Hangouts nor Google’s
video-sharing platform, YouTube, will be required to verify the ages of their account
holders.
Act 689 defines “social media platform” as a “public or semipublic internet-based
service or application” of which the “substantial function . . . is to allow users to interact
socially with each other within the service or application.” Id. at § 1101(8)(A)(ii)(a)
(emphasis added). Once again, the State does not identify the criteria it will rely on to
determine the “substantial function” of an online platform. Act 689 exempts platforms
controlled by businesses that generate less than $100 million annually. Id. at
§ 1101(8)(C). As a result, platforms like Parler, Gab, and Truth Social will fall outside the
scope of Act 689, even though they may host the same potentially harmful content with
which the State is concerned.
Act 689 is littered with other exemptions. For example, companies that exclusively
offer interactive online gaming, cloud storage services, cybersecurity services,
professional networking, career development, or educational tools need not comply. See
id. at § 1101(7)(B)(iii)–(v). Platforms that predominantly or exclusively provide users with
6 email or direct-messaging services are entirely exempt. See id. at § 1101(8)(B)(i)–(ii).
Act 689 also gives a free pass to streaming services (for licensed movies or music);
platforms that pre-select news, sports, entertainment, or other content for account holders
to view; and online shopping or e-commerce sites—provided that the type of user
interaction on these sites is limited to posting and commenting on product reviews or
displaying lists of goods. See id. at § 1101(8)(B)((iii)–(v).
During the hearing for preliminary injunction, the State called Tony Allen to testify
in support of Act 689. Mr. Allen is an expert in age-verification trade standards for the
United Kingdom. He serves as the technical editor of the international standard for age
assurance systems used in the UK and has global oversight over the operation of the
UK’s age-assurance standardization program. See State’s Hearing Exhibit 1-A. Mr. Allen
testified that he was familiar with the sort of robust age-verification requirements Act 689
would likely require, in part, due to his work on the UK’s Online Safety Bill (“OSB”), which
is expected to pass the Houses of Parliament sometime next month. He noted that the
OSB is similar to Act 689 in that both laws are likely to require social media companies to
tighten their age-verification procedures. However, unlike Act 689, the OSB’s age-
verification requirements will be triggered by particular content, called “primary priority
content,” which the UK has determined is damaging or harmful to minors. Arkansas, in
contrast, will require age verification for particular companies at the time of account
creation. Examples of the UK’s “primary priority content” include adult pornography and
information about suicide, self-harm, and dieting.
7 Mr. Allen analogized a social media platform, like Facebook, to a shopping mall
consisting of various “stores” full of content. For example, a Facebook account holder
may use the platform to read the news, interact with a favorite actor or author, share
family photographs, watch videos of people dancing or singing, review books, order
products, or comment on important political events. None of these topics appear to be
obscene, illegal, immoral, or otherwise concerning for minors to view. According to Mr.
Allen, the OSB will only require rigorous age-verification methods “when the primary
priority content risk is triggered”—in other words, when a user approaches the door of a
harmful “store” within the “mall.” Act 689, in contrast, requires age verification at the “front
door” of the “mall” of online platforms, regardless of the content within.
Mr. Allen also testified about the technology used to perform age verification and
the commercial entities that provide age-assurance services in the UK and the European
Union.
Act 689 generally permits a company to utilize “[a]ny commercially reasonable age
verification method.” Act 689 at § 1102(c)(2)(C). Mr. Allen explained the current state-
of-the-art capabilities in online age verification. He testified that a typical scenario would
involve a user being asked to verify his or her age online. Then, the user then would be
shunted to a third-party servicer that collects official documents, such as digital
identification cards or digital driver’s licenses. The user would upload documents to prove
his or her age. 2 Mr. Allen also explained that artificial intelligence programs could be
2 The Act authorizes the use of digitized identification cards or driver’s licenses, as well
as other digitized forms of government-issued identification. Act 689 at § 1102(c)(2). A
8 used to verify age as an alternative (or in addition to) the user providing an identification
card. For example, a user could be asked to upload a selfie of his or her face to prove
that the user was the same person pictured in the official identity document. In addition,
selfies or voice recordings could be required for the servicer to estimate the user’s age
using artificial intelligence. Mr. Allen opined that uploading and scanning a digital driver’s
license would take less than a minute, while age estimation using biometric scanning
would likely take even less time.
Mr. Allen further explained that once an age-verification servicer gathered enough
proof to know that a user was either an adult or a minor, the servicer would generate an
encrypted “token” that answered “yes” or “no” to the question of whether the user was an
adult. After the “token” was sent electronically to the social media company or platform
requesting it, the third-party servicer would then delete the user’s documents, images,
and other data used to verify age and retain a record of the transaction for billing purposes
only.
Mr. Allen identified at least one critical gap in Act 689’s regulatory structure: How
will a regulated company prove that it obtained parental consent for a minor to open a
“digitized identification card” is defined as “a data file available on a mobile device that has connectivity to the internet through a state-approved application that allows the mobile device to download the data file from the Office of Driver Services that contains all of the data elements visible on the face and back of a driver's license or identification card and displays the current status of the driver's license or identification card, including valid, expired, cancelled, suspended, revoked, active, or inactive.” Id. at § 1101(4). Mr. Allen testified during the hearing that Arkansas was still in the process of developing its “state-approved” online app for downloading data files from the Office of Driver Services—which means that this technology is unlikely to be available when Act 689 takes effect on September 1.
9 social media account? He testified that in the UK, online parental consent is only required
when a minor seeks to perform some action online that the law forbids, such as enter into
a contract for the sale or purchase of goods. By contrast, Act 689 will require social media
companies to obtain “express consent of a parent or legal guardian” much more
frequently—whenever an Arkansas minor seeks to open a social media account—and to
use procedures reliable enough to ensure that these companies avoid incurring civil and
criminal penalties. See Act 689 at § 1102(a). Implementing these parental-consent
procedures will not be an easy task, according to Mr. Allen:
I think the biggest challenge you have with parental consent is actually establishing the relationship, the parental relationship. It’s easy to say that this person who is giving the consent is, let’s say, in their 40s, versus the person that’s asking for the consent being under 18. But actually establishing that that is a parent or a legal guardian, that’s the challenge with those processes.
B. Social Media Use Among Minors
“There is broad agreement among the scientific community that social media has
the potential to both benefit and harm children and adolescents.” U.S. Surgeon General,
Social Media and Youth Mental Health 5 (2023), https://www.hhs.gov/sites/default/files
/sg-youth-mental-health-social-media-advisory.pdf (last accessed Aug. 19, 2023) (State’s
Hearing Exhibit 5). Moreover, “different children and adolescents are affected by social
media in different ways, based on their individual strengths and vulnerabilities, and based
on cultural, historical, and socio-economic factors.” Id. Still, experts agree that social
media use carries significant risk to minors’ physical and mental well-being.
10 The State’s medical expert, Dr. Karen Farst, notes in her Affidavit that in her
practice, she has encountered numerous examples of children “active on social media”
who “thought they were communicating with a same-aged peer, and instead it was
someone posing in that role in order to gain trust of the child.” (State’s Hearing Exhibit 2,
p. 3, ¶ 10). 3 Adult predators frequent the internet, and children “from homes where there
has been abuse, neglect, or family discord . . . . look to social media for attachments and
relationships they do not have within their family.” Id. at ¶ 12. This “makes them more
susceptible to being lured into a situation they think is supportive.” Id. Dr. Karst also
cautions that youth experience “cyberbullying” while “on social media” and “can become
so consumed in their online image that it can lead into unlawful and criminal behavior.”
Id. at p. 4, ¶ 14.
The State observes in its Brief that “[a]dult predators often create fake accounts,
posing as minors, and then take advantage of real minors’ comfort in online environments,
coercing them into sending explicit images of themselves.” (Doc. 34, p. 17) (quotation
marks and citation omitted). Moreover, an FBI report the State relies on found:
Financial sextortion schemes occur in online environments where young people feel most comfortable—using common social media sites, gaming sites, or video chat applications that feel familiar and safe. On these platforms, online predators often use fake female accounts and target minor males between 14 to 17 years old, but the FBI has interviewed victims as young as 10 years old.
3 Dr.Farst practices in Arkansas and is a licensed pediatrician and member of the American Academy of Pediatrics’ counsel on child abuse and neglect.
11 FBI Nat’l Press Off., FBI and Partners Issue National Public Safety Alert on Financial
Sextortion Schemes (Dec. 19, 2022), https://www.fbi.gov/news/press-releases/fbi-and-
partners-issue-national-public-safety-alert-on-financial-sextortion-schemes
(last accessed Aug. 19, 2023) (State’s Hearing Exhibit 6).
In addition, several recent studies have highlighted a possible link between social
media use by young people and negative effects on youth mental health. According to
an article published by the American Academy of Child & Adolescent Psychiatry, “On
average, teens are online almost nine hours a day, not including time for homework.” See
Am. Academy of Child & Adolescent Psychiatry, Social Media and Teens (updated Mar.
2018), https://www.aacap.org/AACAP/Families_and_Youth/Facts_for_Families/FFF-
Guide/Social-Media-and-Teens-100.aspx (last accessed Aug. 19, 2023) (State’s Hearing
Exhibit 7). And according to an advisory report issued this year by the U.S. Surgeon
General, a longitudinal cohort study of U.S. adolescents aged 12–15 found “that
adolescents who spent more than 3 hours per day on social media faced double the risk
of experiencing poor mental health outcomes including symptoms of depression and
anxiety.” U.S. Surgeon General, Social Media and Youth Mental Health 4 (2023)
https://www.hhs.gov/sites/default/files/sg-youth-mental-health-social-media-advisory.pdf
(last accessed Aug. 19, 2023) (State’s Hearing Exhibit 5). Yet another study conducted
among 14-year-olds “found that greater social media use predicted poor sleep, online
harassment, poor body image, low self-esteem, and higher depressive symptom scores
with a larger association for girls than boys.” Id. at 7.
12 The amount of time minors spend online appears indicative of negative mental-
health outcomes, and studies indicate that the content minors find online may be to blame.
The Surgeon General’s report observed:
Extreme, inappropriate, and harmful content continues to be easily and widely accessible by children and adolescents. This can be spread through direct pushes, unwanted content exchanges, and algorithmic designs. In certain tragic cases, childhood deaths have been linked to suicide- and self- harm-related content and risk-taking challenges on social media platforms. This content may be especially risky for children and adolescents who are already experiencing mental health difficulties. Despite social media providing a sense of community for some, a systematic review of more than two dozen studies found that some social media platforms show live depictions of self-harm acts like partial asphyxiation, leading to seizures, and cutting, leading to significant bleeding. Further, these studies found that discussing or showing this content can normalize such behaviors, including through the formation of suicide pacts and posting of self-harm models for others to follow.
Id. at 8.
C. Types of Speech Available on NetChoice Members’ Platforms
The parties jointly stipulate that adults and minors use NetChoice members’ 4
online services to engage in an array of expressive activity that is protected by the First
Amendment. See Court’s Exhibit 1. Social media companies and platforms “allow[] users
to gain access to information and communicate with one another about it on any subject
that might come to mind.” Packingham v. North Carolina, 582 U.S. 98, 107 (2017).
“[U]sers employ these websites to engage in a wide array of protected First Amendment
4 As previously stated, NetChoice, LLC, is an internet trade association consisting of
members such as Facebook, Instagram, Twitter, TikTok, Snapchat, Pinterest, and Nextdoor.
13 activity on topics ‘as diverse as human thought.’” Id. at 105 (quoting Reno v. Am. Civil
Liberties Union, 521 U.S. 844, 870 (1997)). “On Facebook, for example, users can debate
religion and politics with their friends and neighbors or share vacation photos.” Id. at 104.
On “Twitter, users can petition their elected representatives and otherwise engage with
them in a direct manner.” Id. at 104–05.
According to the Declaration of Carl Szabo, Vice President and General Counsel
of NetChoice, minors routinely use the services of NetChoice members “to read the news,
connect with friends, explore new interests, and follow their favorite sports teams and
their dream colleges,” as well as “showcase their creative talents to others,” “raise
awareness about social causes,” and “participate in public discussion on the hottest topics
of the day.” (Plaintiff’s Hearing Exhibit 1, ¶ 6). Adults use Facebook for various reasons,
including taking part in religious services. Id. at ¶ 9. Users of Pinterest share ideas for
recipes, style, and home décor. Id.
According to the Declaration of Antigone Davis, Vice President and Global Head
of Safety at Meta Platforms, Inc., Facebook and Instagram provide online platforms for
users to engage in speech for the purpose of making social connections, showcasing
creative talents, gathering information and news about the world, receiving education,
and participating in the democratic process. (Plaintiff’s Hearing Exhibit 2, ¶¶ 11–20). Her
Declaration cites to a number of surveys that indicate social media may promote
connectedness, reduce social isolation, establish online-only friendships, assist
individuals in finding support and inspiration during times of depression, stress, and
14 anxiety, and allow users of all ages to engage with differing viewpoints on civic issues.
Id. at ¶¶ 22–25.
With all that said, it cannot be assumed that NetChoice members host only
constitutionally protected speech. Despite these entities’ efforts to self-regulate, it is
undoubtedly true that social media users of any age may still encounter some speech
online that is not entitled to constitutional protection, including real threats, child
pornography, obscenity, defamation, fighting words, or speech integral to criminal
conduct. See United States v. Alvarez, 567 U.S. 709, 717 (2012). In addition, minors
may encounter speech online that is constitutionally protected as to adults, but not as to
minors.
D. Existing Parental Controls
Of course, parents may rightly decide to regulate their children’s use of social
media—including restricting the amount of time they spend on it, the content they may
access, or even those they chat with. And many tools exist to help parents with this.
Cell carriers and broadband providers provide parents with tools to block certain
applications and websites from their children’s devices, ensure that their children are
texting and chatting with trusted contacts only, and restrict their children’s access to
screen time during certain hours of the day. See, e.g., Verizon, Verizon Smart Family,
https://tinyurl.com/ycyxy6x6 (Plaintiff’s Hearing Exhibit 17); AT&T, Parental Controls,
https://tinyurl.com/3ypvj7bv (Plaintiff’s Hearing Exhibit 6); T-Mobile, Family Controls and
Privacy, https://tinyurl.com/57run7ac (Plaintiff’s Hearing Exhibit 16); Comcast Xfinity, Set
15 Up Parental Controls for the Internet, https://tinyurl.com/5acdsnat (Plaintiff’s Hearing
Exhibit 7).
Wireless routers, which provide internet connectivity, also offer parental control
settings. See Molly Price & Ry Crist, How to Set Up and Use Your Wi-Fi Router’s Parental
Controls, CNET (Feb. 11, 2021), https://archive.ph/wip/uGaN2 (Plaintiff’s Hearing Exhibit
15). Parents can use these settings to block certain websites or online services that they
deem inappropriate, set individualized content filters for their children, and monitor the
websites their children visit and the services they use. See Netgear, Circle Smart Parental
Controls, https://archive.ph/wip/0GbB5 (Plaintiff’s Hearing Exhibit 14). Parents can also
use router settings to turn off their home internet at particular times of day, pause internet
access for a particular device or user, or limit the amount of time that a child can spend
on a particular website or online service. Id.
Additional parental controls are available at the device level. For example, iPhones
and iPads empower parents to limit the amount of time their children can spend on the
device, choose which applications (e.g., YouTube, Facebook, Snapchat, or Instagram)
their children can use, set age-related content restrictions for those applications, filter
online content, and control privacy settings. See Apple, Use Parental Controls on Your
Child’s iPhone, iPad, and iPod Touch, https://archive.ph/T68VI (Plaintiff’s Hearing Exhibit
5). Google and Microsoft similarly offer parental controls for their devices. See Google
Family Link, Help Keep Your Family Safer Online, https://tinyurl.com/mr4bnwpy
(Plaintiff’s Hearing Exhibit 8); Microsoft, Getting Started with Microsoft Family Safety,
https://tinyurl.com/yc6kyruh (Plaintiff’s Hearing Exhibit 10). In addition, numerous third-
16 party applications allow parents to control and monitor their children’s use of Internet-
connected devices and online services. See Ben Moore & Kim Key, The Best Parental
Control Apps for Your Phone, PCMag (Mar. 29, 2022), https://archive.ph/HzzfH (Plaintiff’s
Hearing Exhibit 12).
Parental controls on internet browsers offer another layer of protection. Apple
Safari, Google Chrome, Microsoft Edge, and Mozilla Firefox offer parents tools to control
which websites their children can access. See, e.g., Mozilla, Block and Unblock Websites
with Parental Controls on Firefox, https://tinyurl.com/6u6trm5y (Plaintiff’s Hearing Exhibit
13). Microsoft offers “Kids Mode,” which allows children to access only a pre-approved
list of websites. See Microsoft, Learn More About Kids Mode in Microsoft Edge,
https://tinyurl.com/59wsev2k (Plaintiff’s Hearing Exhibit 11). Google has a similar feature.
It also provides parents with “activity reports,” allowing them to see what apps and
websites their children access most frequently. See Google, Safety Center,
https://tinyurl.com/kwkeej9z (Plaintiff’s Hearing Exhibit 9).
To be sure, parents may or may not use these tools. Mr. Allen’s Declaration
explains that even though these filtering controls can be “applied in the home, on the
router or on laptops, tablets, and smartphones through family cellular plans,” research
indicates “that many parents are unaware of this technology” or “do not know how to use
it, or discover their children also know how to use it or have circumvented it some other
way.” (State’s Hearing Exhibit 1, p. 5). Furthermore, he attests, “Children can be very
persuasive, and parents might release the controls to allow them to play a game designed
17 for 18+ within a social media platform, unaware the game or platform may be a portal to
pornographic or other unsuitable content and dangerous functionality.” Id.
NetChoice members have developed their own policies and practices designed to
protect minors who use social media. Facebook, Instagram, Twitter, Pinterest, Snapchat,
and Nextdoor require users in the United States to be at least 13 years old before they
can create an account—though account holders are asked only to self-report their ages.
See Declaration of Justyn Harriman, Plaintiff’s Hearing Exhibit 4, ¶ 13. TikTok offers a
limited app experience for users under 13 called “TikTok for Younger Users” where
children are provided a viewing experience that does not permit them to share personal
information and puts extensive limitations on content and user interaction. (Doc. 2, ¶ 17).
TikTok also partners with Common Sense Networks to try and ensure that content is both
age-appropriate and safe for an audience under 13. Id. Facebook, Instagram, TikTok,
and Pinterest default to private settings for teenage users when they sign up for accounts,
and these platforms claim they encourage their teenage users to choose more private
settings through prompts and suggestions. See Doc. 2, ¶ 17; Declaration of Antigone
Davis, Plaintiff’s Hearing Exhibit 2, ¶ 31.
NetChoice members also attempt to curate the content that users post on their
platforms. See, e.g., Declaration of Justyn Harriman, Plaintiff’s Hearing Exhibit 4, ¶ 9.
Members attempt to restrict the uploading of violent and sexual content, bullying, and
harassment. See Declaration of Carl Szabo, Plaintiff’s Hearing Exhibit 1, ¶ 7. Several
NetChoice members use age-verification technology to try to keep minors from seeing
certain content visible to adults, or to keep younger teens from seeing content visible to
18 older teens. Id. NetChoice members implement these policies through algorithms,
automated editing tools, and human review. See Declaration of Antigone Davis, Plaintiff’s
Hearing Exhibit 2, ¶¶ 27, 36. If a platform decides that certain content violates its policies,
it may remove the content, restrict it, or add a warning label or a disclaimer to accompany
it. See Declaration of Justyn Harriman, Plaintiff’s Hearing Exhibit 4, ¶ 10.
Evidence received by the Court demonstrates that NetChoice members also
provide users with tools to curate the content they wish to see. Facebook users can
control the content that Facebook recommends to them by hiding a post or opting to see
fewer posts from a specific person or group. See Declaration of Antigone Davis, Plaintiff’s
Hearing Exhibit 2, ¶ 41. Instagram users can use the “not interested” button or keyword
filters (for example, “fitness” or “recipes” or “fashion”) to filter out content they do not wish
to see. Id. Parents can use Instagram’s “supervision tools” to see how much time their
teens spend on Instagram, set time limits and scheduled breaks, receive updates on
which accounts their teens follow and the accounts that follow their teens, and receive
notifications if a change is made to their child’s settings. Id. at ¶ 28. Instagram also uses
online prompts and safety notices to encourage teens to be cautious in their
conversations with adults, even those they may already know. Id. at ¶ 30. Further,
Instagram informs young people when an adult who has been exhibiting potentially
suspicious behavior tries to interact with them. Id. Instagram claims that if an adult is
sending a large number of friend or message requests to people under age 18, or if the
adult has recently been blocked by people under age 18, the platform alerts the recipients
and gives them an option to end the conversation and block, report, or restrict the adult.
19 Id. TikTok also has a “family pairing” feature that allows parents to, among other things,
set a screen-time limit, restrict exposure to certain content, decide whether their teen’s
account is private or public, turn off direct messaging, and decide who can comment on
their teen’s videos. See Declaration of Carl Szabo, Plaintiff’s Hearing Exhibit 1, ¶ 7.
Mr. Allen offered helpful testimony about his impressions of NetChoice members’
internal parental-control features. He agreed that “the vast majority [of member platforms]
have . . . family control centers” and similar features that allow parents to “set [their]
preferences and controls [they] want to have in place for [their children].” These controls
are available “on the individual platform” or “can be programmed as part of the device
that [is being used] to access them”—i.e., through the user’s phone or laptop computer.
Mr. Allen believes the key to keeping children safe online is to age-gate harmful content
through rigorous methods and to dramatically increase parents’ use of filtering and other
control methods to curate and monitor minors’ activities online.
III. LEGAL STANDARD
In determining whether to grant a motion for preliminary injunction to a plaintiff with
standing, the Court must weigh the following four considerations: (1) the threat of
irreparable harm to the moving party; (2) the movant’s likelihood of success on the merits;
(3) the balance between the harm to the movant if the injunction is denied and the harm
to other party if the injunction is granted; and (4) the public interest. Dataphase Sys., Inc.
v. CL Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1981). “While no single factor is
determinative, the probability of success factor is the most significant.” Kodiak Oil & Gas
(USA) Inc. v. Burr, 932 F.3d 1125, 1133 (8th Cir. 2019) (citation and quotation omitted).
20 In particular, “[w]hen a Plaintiff has shown a likely violation of his or her First Amendment
rights, the other requirements for obtaining a preliminary injunction are generally deemed
to have been satisfied.” Phelps-Roper v. Troutman, 662 F.3d 485, 488 (8th Cir. 2011)
(per curiam), vacated on reh’g on other grounds, 705 F.3d 845 (8th Cir. 2012).
IV. DISCUSSION
A. Standing
To bring a cause of action in federal court, the plaintiff must establish standing to
sue. City of Clarkson Valley v. Mineta, 495 F.3d 567, 569 (8th Cir. 2007). “In essence
the question of standing is whether the litigant is entitled to have the court decide the
merits of the dispute or of particular issues.” Warth v. Seldin, 422 U.S. 490, 498 (1975).
The “inquiry involves both constitutional limitations on federal-court jurisdiction and
prudential limitations on its exercise.” Id. Constitutional standing addresses who has the
right to invoke the power of a court (e.g., by filing a lawsuit), while prudential standing
addresses what arguments a party may raise as a claim or defense. See Curtis A.
Bradley, Ernest A. Young, Unpacking Third-Party Standing, 131 Yale L.J. 1, 26 (2021).
For a plaintiff to prove it has constitutional standing to sue under Article III, it must
demonstrate it has suffered, or will suffer, and injury-in-fact that is concrete and
particularized, actual or imminent, fairly traceable to the defendant’s actions, and likely to
be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–
61 (1992). Requiring a plaintiff to establish constitutional standing to sue “ensures that
the Federal Judiciary confines itself to its constitutionally limited role of adjudicating actual
21 and concrete disputes, the resolutions of which have direct consequences on the parties
involved.” United States v. Sanchez-Gomez, 138 S. Ct. 1532, 1537 (2018).
NetChoice contends that its constitutional standing enables it to bring two separate
claims. First is a due process claim made on behalf of NetChoice’s members. NetChoice
argues that certain pivotal terms in Act 689 are too vague to be understood by the
regulated parties and uniformly enforced by the State, which makes Act 689
unconstitutional. The State does not dispute that NetChoice has constitutional standing
to assert this claim, as it clearly arises from economic injuries that are fairly traceable to
Act 689’s regulatory requirements.
Second, NetChoice asserts a constitutional claim on behalf of Arkansans. It
argues that Act 689’s regulatory requirements unconstitutionally burden Arkansans’ First
Amendment rights. The State maintains that NetChoice lacks prudential standing to
assert this claim.
1. Constitutional Standing
As the Court previously noted, NetChoice is an internet trade association with
members who are subject to Act 689’s requirements. Though an entity like NetChoice is
not directly injured by a law, it may nevertheless assert associational standing on behalf
of its injured members. See Higgins Elec., Inc. v. O’Fallon Fire Prot. Dist., 813 F.3d 1124,
1128 (8th Cir. 2016). To establish associational standing, the entity must show: (1) its
members would have standing to sue in their own right; (2) the suit seeks to protect
interests germane to the association’s purpose; and (3) neither the claim asserted nor the
22 relief requested requires the individual members of the association to participate in the
lawsuit. See Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 343 (1977).
NetChoice establishes associational standing on behalf of its members due to the
non-speculative economic injury members must incur to comply with Act 689. Economic
injury associated with state regulatory requirements forms a sufficient basis for first-party
standing. See Virginia v. Am. Booksellers Ass’n, Inc., 484 U.S. 383, 393 (1988) (finding
that a booksellers’ association had constitutional standing to challenge a state law “aimed
directly” at it, since the association would “have to take significant and costly compliance
measures or risk criminal prosecution”).
If Act 689 goes into effect, the member entities will have three choices: incur
expenses to implement an age-verification system in compliance with the Act; bar
Arkansans from opening accounts on all regulated platforms; or face criminal penalties
and civil enforcement actions brought by the Arkansas Attorney General. See Doc. 18,
p. 45 (arguing that those entities “covered by the Act will face a perilous choice between
exposing themselves to massive liability for disseminating speech to minors or taking
costly and burdensome steps that will drastically curtail access to their online services,
all before a court decides the merits of their claims.”); Doc. 17-2, p. 21, Declaration of
Antigone Davis, Vice President, Global Head of Safety, Meta (explaining that Act 689
requires “substantial and burdensome changes to the design and operation of the
Facebook and Instagram services”); Doc. 17-4, p. 11, Declaration of Justyn Harriman,
Senior Engineering Manager, Trust & Safety and Verification, Nextdoor (explaining that it
23 would take Nextdoor “at least six months” to implement Act 689’s requirements and would
increase costs “by up to 3000%”).
While the State quibbles with precisely how burdensome Act 689 will prove in
practice, it does not deny that compliance will impose some costs. The injuries here are
sufficient to establish that NetChoice members would have standing to sue in their own
right, and thereby satisfy the first prong of the associational-standing test. See Dakota
Energy Coop., Inc. v. E. River Elec. Power Coop., Inc., 2023 WL 4834598, at *2 (8th Cir.
July 28, 2023) (finding a “risk of direct financial harm establishes injury in fact for standing
purposes” (brackets and quotations omitted)). 5
As for the second prong of associational standing, the relief sought by NetChoice
is central to its organizational purpose of “mak[ing] the Internet safe for free enterprise
and free expression.” (Declaration of Carl Szabo, Plaintiff’s Hearing Exhibit 1). And as to
the third prong, the resolution of NetChoice’s claims does not require the “individual
participation of each injured party.” United Food & Com. Workers Union Loc. 751 v.
Brown Grp., Inc., 517 U.S. 544, 552 (1996) (brackets omitted) (quoting Warth, 422 U.S.
at 511). NetChoice’s “claims can be proven by evidence from representative injured
members, without fact-intensive-individual inquiry,” and, under these circumstances, “the
participation of [certain] individual members does not thwart associational standing.”
5 As NetChoice has standing under an economic theory of injury, it is not necessary for
the Court to evaluate its non-economic theory of injury at this time.
24 Ass’n of Am. Physicians & Surgeons, Inc. v. Texas Med. Bd., 627 F.3d 547, 552 (5th Cir.
2010). 6 In sum, NetChoice possesses constitutional standing to challenge Act 689.
2. Prudential Standing
Prudential standing asks, “who, according to the governing substantive law, is
entitled to enforce the right.” Abraugh v. Altimus, 26 F.4th 298, 304 (5th Cir. 2022). “Even
when Article III permits the exercise of federal jurisdiction, prudential considerations
demand that the Court insist upon ‘that concrete adverseness which sharpens the
presentation of issues upon which the court so largely depends for illumination of difficult
constitutional questions.’” United States v. Windsor, 570 U.S. 744, 760 (2013) (quoting
Baker v. Carr, 369 U.S. 186, 204 (1962)). Accordingly, the “prudential standing rule . . .
normally bars litigants from asserting the rights or legal interests of others in order to
obtain relief from injury to themselves.” Warth, 422 U.S. at 509. However, there are
exceptions to the rule—which, the Court concludes, enable NetChoice to properly assert
both a due process challenge based on direct injury to its members and a First
Amendment challenge based on indirect injury to Arkansans.
“There is no prudential standing bar when member-based organizations advocate
for the rights of their members.” Memphis A. Philip Randolph Inst. v. Hargett, 2 F.4th 548,
557 (6th Cir. 2021). By establishing associational standing, NetChoice also establishes
6 Many courts have found the third prong of the associational standing test to be prudential. See Housatonic River Initiative v. United States Env't Prot. Agency, New England Region, 75 F.4th 248, 265 (1st Cir. 2023) (“The first two prongs of this test have constitutional dimensions; the third prong is prudential.”) (citing United Food, 517 U.S. at 554–58 (1996)). However, the prudential nature of NetChoice’s associational standing is not at issue.
25 itself as the appropriate party to raise a due process challenge to Act 689 based on direct
injury to the due process rights of its members.
The Supreme Court has also held that a litigant may assert the rights of a third
party “when enforcement of the challenged restriction against the litigant would result
indirectly in the violation of third parties’ rights.” Warth, 422 U.S. at 510. Here, the State
contends no such exception applies because NetChoice members cannot adequately
advocate in favor of their users’ First Amendment rights. According to the State:
Social-media companies are businesses that seek a profit, and they do not have the same concerns as parents and children. This is a “substantial conflict” of interests that would make NetChoice an ineffective proponent of the rights of the users and thus defeats any potentially close relationship.
(Doc. 41, p. 3) (cleaned up).
The Court disagrees. The relationship between NetChoice members and their
users is analogous to the relationship between vendors of goods and their customers—
and the Supreme Court has held that vendors have prudential standing to advocate in
favor of their customers’ constitutional rights when those rights are burdened by the
state’s regulation of the vendor. For example, in Craig v. Boren, a licensed vendor of
beer and her underage male customer challenged the constitutionality of gender-based
distinctions in Oklahoma’s liquor laws. 429 U.S. 190, 193 (1976). During the pendency
of the lawsuit, the customer, Craig, turned 21, so his claim became moot. Nevertheless,
the Court held that the vendor, Whitener, had standing to assert constitutional equal
protection claims on behalf of Craig and other underage male customers. The Court
explained:
26 As a vendor with standing to challenge the lawfulness of [Oklahoma’s liquor laws], appellant Whitener is entitled to assert those concomitant rights of third parties that would be ‘diluted or adversely affected’ should her constitutional challenge fail and the statutes remain in force. Otherwise, the threatened imposition of governmental sanctions might deter appellant Whitener and other similarly situated vendors from selling 3.2% beer to young males, thereby ensuring that “enforcement of the challenged restriction against the (vendor) would result indirectly in the violation of third parties’ rights.” Warth v. Seldin, 422 U.S. 490, 510 (1975). Accordingly, vendors and those in like positions have been uniformly permitted to resist efforts at restricting their operations by acting as advocates of the rights of third parties who seek access to their market or function.
Id. at 195.
Just a year after the decision in Craig, the Court took up a similar prudential
standing question in Carey v. Population Services International, 431 U.S. 678, 682–84
(1977). There, the Court decided that a vendor of contraceptive devices had standing to
challenge the constitutionality of a New York law that restricted the sale of such devices.
The vendor “ha[d] standing to challenge [state law], not only in its own right but also on
behalf of its potential customers,” as was “settled in Craig v. Boren.” Id. at 683.
Since Carey, many circuit courts have found prudential standing to exist in the
context of vendor-customer relationships. See, e.g., Postscript Enters., Inc. v. Whaley,
658 F.2d 1249, 1252 (8th Cir. 1981) (finding that a vendor had standing, not only in its
individual capacity, but also with respect to its ability to assert the rights of its present and
potential customers in challenging a municipal ordinance that banned the sale of
contraceptives and related products except by certain entities); Md. Shall Issue, Inc. v.
Hogan, 971 F.3d 199 (4th Cir. 2020) (holding that firearms dealer had third-party standing
to pursue claim that Maryland’s handgun qualification license violated its potential
27 customers’ Second Amendment rights); Kaahumanu v. Hawaii, 682 F.3d 789, 797 (9th
Cir. 2012) (agreeing that a wedding planner had standing to challenge permitting
regulations on behalf of those seeking to marry); Ezell v. City of Chi., 651 F.3d 684, 696
(7th Cir. 2011) (allowing a vendor to challenge city ordinance banning firing-range
facilities for third parties who sought access to those facilities); United States v. Extreme
Assocs., Inc., 431 F.3d 150, 155 (3d Cir. 2005) (holding that a vendor of obscene
materials had standing to challenge a federal obscenity statute on behalf of its
customers).
Another Supreme Court case, Virginia v. American Booksellers Association, Inc.,
is particularly compelling. 484 U.S. 383, 393 (1988). In Virginia, a booksellers’
association challenged the constitutionality of a state law on the ground that it infringed
on the First Amendment rights of book buyers. The trial court dismissed the book buyer
plaintiffs after finding their claims were too speculative. Id. at 392. When the case finally
made its way to the Supreme Court, the state argued that the booksellers’ association
lacked standing to bring a First Amendment challenge on behalf of its book buying
customers. The Court rejected that argument, reasoning:
Even if an injury in fact is demonstrated, the usual rule is that a party may assert only a violation of its own rights. However, in the First Amendment context, “‘[l]itigants . . . are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression.’” Secretary of State of Maryland v. J.H. Munson Co., 467 U.S. 947, 956–957, 104 S. Ct. 2839, 2846–2847, 81 L.Ed.2d 786 (1984), quoting Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S. Ct. 2908, 2916, 37 L.Ed.2d 830 (1973). This exception applies here, as plaintiffs have alleged an infringement of the First Amendment rights of bookbuyers.
28 Id. at 392–93.
Turning now to the instant case, the State argues that the vendor line of cases
cited above is inapposite because those cases involved existing customers, while Act 689
seeks to regulate hypothetical future users of social media platforms. During the hearing,
the State pointed the Court to Kowalski v. Tesmer, a case in which the Supreme Court
found that criminal defense attorneys lacked third-party standing to challenge the
constitutionality of a Michigan statute on behalf of hypothetical future clients. 543 U.S.
125, 130–31 (2004). The Court finds Kowalski to be clearly distinguishable from the case
at bar because the contested issue there was Article III standing—not prudential standing.
The Supreme Court dismissed Kowalski upon finding that the attorneys who filed
suit had no injury-in-fact and, thus, no constitutional standing in their own right. Here,
NetChoice asserts a cognizable economic injury-in-fact that directly arises from
compliance with Act 689. In addition, NetChoice has asserted the constitutional rights of
its users and the injuries that users are likely to suffer as a direct result of the State’s
regulation of NetChoice’s members. These concerns are not speculative. Moreover, the
Court finds that NetChoice members are well positioned to raise these concerns. They
have a thorough understanding of the content hosted on their platforms and the ways in
which their customers exercise their First Amendment rights on those platforms. The
Court therefore concludes that NetChoice—like the booksellers’ association in the
Virginia case—is in a unique position to advocate for the rights of Arkansas users and
may appropriately do so here.
29 B. Likelihood of Success on the Merits
1. Void for Vagueness: NetChoice Members’ Claim
NetChoice argues that Act 689 violates the due process rights of its members
because pivotal terms are unconstitutionally vague. As the Supreme Court explained in
Grayned v. City of Rockford:
It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them.
408 U.S. 104, 108 (1972) (footnotes omitted).
A regulation “violates the first essential of due process of law” by failing to provide
adequate notice of prohibited conduct. Connally v. General Constr. Co., 269 U.S. 385,
391 (1926) (citations omitted). A court should find a regulation unconstitutional if it
“forbids or requires the doing of an act in terms so vague that [persons] of common
intelligence must necessarily guess at its meaning and differ as to its application . . . .” Id.
Although the “void for vagueness” doctrine often applies to criminal laws enacted
under a state’s penal code, see Vill. of Hoffman Estates v. Flipside, Hoffman Estates,
Inc., 455 U.S. 489, 498–99 (1982), the doctrine is applicable here because Act 689 not
only imposes possible criminal and civil penalties on companies that fail to comply with
30 its requirements, 7 but also interferes with their customers’ access to constitutionally
protected speech. The void-for-vagueness doctrine provides that “regulated parties
should know what is required of them so they may act accordingly . . . [and that] precision
and guidance are necessary so that those enforcing the law do not act in an arbitrary or
discriminatory way.” F.C.C. v. Fox TV Stations, Inc., 567 U.S. 239, 253 (2012) (citing
Grayned, 408 U.S. at 108–109). The stakes are even higher, however, “[w]hen speech
is involved.” Id. at 253–54. It is critical “to ensure that ambiguity does not chill protected
speech.” Id.
“It is essential that legislation aimed at protecting children from allegedly harmful
expression—no less than legislation enacted with respect to adults—be clearly drawn and
that the standards adopted be reasonably precise so that those who are governed by the
law and those that administer it will understand its meaning and application.” Interstate
Circuit, Inc. v. City of Dallas, 390 U.S. 676, 689 (1968) (striking down city ordinance
imposing misdemeanor penalty on movie theaters for showing films “unsuitable for
minors” as impermissibly vague); see also Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495,
497 (1952) (invalidating state law banning motion picture distributors from distributing
“sacrilegious” movies due to vague standards); Winters v. New York, 333 U.S. 507, 518–
7 Act 689 states that a regulated “social media company” is to be held strictly liable for
“fail[ing] to perform a reasonable age verification.” Act 689 at § 1103(a)(1). The Act contemplates the imposition of a Class A misdemeanor penalty for non-compliance, see § 1103(b)(1) (cross-referencing Ark. Code Ann. § 4-88-103), a possible civil enforcement action by the Attorney General, see § 1103(b)(2) (cross-referencing Ark. Code Ann. § 4- 88-104), and civil lawsuits brought by aggrieved citizens, see § 1103(c)(1).
31 19 (1948) (finding unconstitutionally vague a state law regulating the distribution of certain
commercial publications).
Here, Act 689 is unconstitutionally vague because it fails to adequately define
which entities are subject to its requirements. A “social media company” is defined as
“an online forum that a company makes available for an account holder” to “[c]reate a
public profile, establish an account, or register as a user for the primary purpose of
interacting socially with other profiles and accounts,” “[u]pload or create posts or content,”
“[v]iew posts or content of other account holders,” and “[i]nteract with other account
holders or users, including without limitation establishing mutual connections through
request and acceptance.” Act 689 at § 1101(7)(A) (emphasis added). But the statute
neither defines “primary purpose”—a term critical to determining which entities fall within
Act 689’s scope—nor provides any guidelines about how to determine a forum’s “primary
purpose,” leaving companies to choose between risking unpredictable and arbitrary
enforcement (backed by civil penalties, attorneys’ fees, and potential criminal sanctions)
and trying to implement the Act’s costly age-verification requirements. Such ambiguity
renders a law unconstitutional.
Even when speech is not at issue, the void for vagueness doctrine addresses at least two connected but discrete due process concerns: first, that regulated parties should know what is required of them so they may act accordingly; second, precision and guidance are necessary so that those enforcing the law do not act in an arbitrary or discriminatory way. When speech is involved, rigorous adherence to those requirements is necessary to ensure that ambiguity does not chill protected speech.
See Fox, 567 U.S. at 253–54. “[A] regulation is not vague because it may at times be
difficult to prove an incriminating fact but rather because it is unclear as to what fact must
32 be proved.” Id. (emphasis added) (citing United States v. Williams, 553 U.S. 285, 306
(2008)). Here, NetChoice argues that the actions and intentions of platform users drive
whether a platform is subject to regulation, and because the motivations of platform users
are varied, it is impossible for companies to know whether they are subject to regulation.
The State argues that Act 689’s definitions are clear and that “any person of
ordinary intelligence can tell that [Act 689] regulates Meta, Twitter[,] and TikTok.” (Doc.
34, p. 20). But what about other platforms, like Snapchat? David Boyle, Snapchat’s
Senior Director of Products, stated in his Declaration that he was not sure whether his
company would be regulated by Act 689. He initially suspected that Snapchat would be
exempt until he read a news report quoting one of Act 689’s co-sponsors who claimed
Snapchat was specifically targeted for regulation. See Plaintiff’s Hearing Exhibit 3, ¶ 8
(citing Brian Fung, Arkansas Governor Signs Sweeping Bill Imposing a Minimum Age
Limit for Social Media Usage, CNN.com (Apr. 12, 2023),
https://www.cnn.com/2023/04/l2/tech/arkansas-social-media-age-limit/index.html).
During the evidentiary hearing, the Court asked the State’s expert, Mr. Allen,
whether he believed Snapchat met Act 689’s definition of a regulated “social media
company.” He responded in the affirmative, explaining that Snapchat’s “primary purpose”
matched Act 689’s definition of a “social media company” (provided it was true that
Snapchat also met the Act’s profitability requirements). When the Court asked the same
question to the State’s attorney later on in the hearing, he gave a contrary answer—which
illustrates the ambiguous nature of key terms in Act 689. The State’s attorney disagreed
33 with Mr. Allen—his own witness—and said the State’s official position was that Snapchat
was not subject to regulation because of its “primary purpose.”
Other provisions of Act 689 are similarly vague. The Act defines the phrase “social
media platform” as an “internet-based service or application . . . [o]n which a substantial
function of the service or application is to connect users in order to allow users to interact
socially with each other within the service or application”; but the Act excludes services
in which “the predominant or exclusive function is” “[d]irect messaging consisting of
messages, photos, or videos” that are “[o]nly visible to the sender and the recipient or
recipients” and “[a]re not posted publicly.” Act 689 at §1101(8)(A)–(B) (emphasis added).
Again, the statute does not define “substantial function” or “predominant . . . function,”
leaving companies to guess whether their online services are covered. Many services
allow users to send direct, private messages consisting of texts, photos, or videos, but
also offer other features that allow users to create content that anyone can view. Act 689
does not explain how platforms are to determine which function is “predominant,” leaving
those services to guess whether they are regulated.
Act 689 also fails to define what type of proof will be sufficient to demonstrate that
a platform has obtained the “express consent of a parent or legal guardian.” Id. at
§ 1102(a). If a parent wants to give her child permission to create an account, but the
parent and the child have different last names, it is not clear what, if anything, the social
media company or third-party servicer must do to prove a parental relationship exists.
And if a child is the product of divorced parents who disagree about parental permission,
proof of express consent will be that much trickier to establish—especially without
34 guidance from the State.
These ambiguities were highlighted by the State’s own expert, who testified that
“the biggest challenge . . . with parental consent is actually establishing the relationship,
the parental relationship.” Since the State offers no guidance about the sort of proof that
will be required to show parental consent, it is likely that once Act 689 goes into effect,
the companies will err on the side of caution and require detailed proof of the parental
relationship. As a result, parents and guardians who otherwise would have freely given
consent to open an account will be dissuaded by the red tape and refuse consent—which
will unnecessarily burden minors’ access to constitutionally protected speech.
For all these reasons, the Court finds that NetChoice is likely to succeed on the
merits of its vagueness claim, and the law is likely to be unconstitutional on that basis
alone.
2. Burdens on First Amendment Rights: Platform Users’ Rights
a. Level of Scrutiny
NetChoice contends that Act 689’s age-verification requirements target speech on
social media websites and platforms based on content, speaker, and viewpoint, so the
Act is subject to strict scrutiny. The State disagrees and argues that Act 689’s age-
verification requirements are merely a content-neutral regulation on access to speech at
particular “locations,” so intermediate scrutiny should apply. According to the Supreme
Court’s seminal opinion in Ward v. Rock Against Racism:
The principal inquiry in determining content neutrality, in speech cases generally and in time, place, or manner cases in particular, is whether the government has adopted a regulation of speech because of disagreement
35 with the message it conveys. The government's purpose is the controlling consideration. A regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others.
491 U.S. 781, 791–92 (1989).
Deciding whether Act 689 is content-based or content-neutral turns on the reasons
the State gives for adopting the Act. First, the State argues that the more time a minor
spends on social media, the more likely it is that the minor will suffer negative mental-
health outcomes, including depression and anxiety. Second, the State points out that
adult sexual predators on social media seek out minors and victimize them in various
ways. Therefore, to the State, a law limiting access to social media platforms based on
the user’s age would be content-neutral and require only intermediate scrutiny.
On the other hand, the State points to certain speech-related content on social
media that it maintains is harmful for children to view. Some of this content is not
constitutionally protected speech, while other content, though potentially damaging or
distressing, especially to younger minors, is likely protected nonetheless. Examples of
this type of speech include depictions and discussions of violence or self-harming,
information about dieting, so-called “bullying” speech, or speech targeting a speaker’s
physical appearance, race or ethnicity, sexual orientation, or gender. If the State’s
purpose is to restrict access to constitutionally protected speech based on the State’s
belief that such speech is harmful to minors, then arguably Act 689 would be subject to
strict scrutiny.
During the hearing, the State advocated for intermediate scrutiny and framed Act
36 689 as “a restriction on where minors can be,” emphasizing it was “not a speech
restriction” but “a location restriction.” The State’s briefing analogized Act 689 to a
restriction on minors entering a bar or a casino. But this analogy is weak. After all, minors
have no constitutional right to consume alcohol, and the primary purpose of a bar is to
serve alcohol. By contrast, the primary purpose of a social media platform is to engage
in speech, and the State stipulated that social media platforms contain vast amounts of
constitutionally protected speech for both adults and minors. Furthermore, Act 689
imposes much broader “location restrictions” than a bar does. The Court inquired of the
State why minors should be barred from accessing entire social media platforms, even
though only some of the content was potentially harmful to them, and the following
colloquy ensued:
THE COURT: Well, to pick up on Mr. Allen’s analogy of the mall, I haven't been to the Northwest Arkansas mall in a while, but it used to be that there was a restaurant inside the mall that had a bar. And so certainly minors could not go sit at the bar and order up a drink, but they could go to the Barnes & Noble bookstore or the clothing store or the athletic store. Again, borrowing Mr. Allen’s analogy, the gatekeeping that Act 689 imposes is at the front door of the mall, not the bar inside the mall; yes?
THE STATE: The state’s position is that the whole mall is a bar, if you want to continue to use the analogy.
THE COURT: The whole mall is a bar?
THE STATE: Correct.
Clearly, the State’s analogy is not persuasive.
NetChoice argues that Act 689 is not a content-neutral restriction on minors’ ability
37 to access particular spaces online, and the fact that there are so many exemptions to the
definitions of “social media company” and “social media platform” proves that the State is
targeting certain companies based either on a platform’s content or its viewpoint. Indeed,
Act 689’s definitions and exemptions do seem to indicate that the State has selected a
few platforms for regulation while ignoring all the rest. The fact that the State fails to
acknowledge this causes the Court to suspect that the regulation may not be content-
neutral. “If there is evidence that an impermissible purpose or justification underpins a
facially content-neutral restriction, for instance, that restriction may be content-based.”
City of Austin v. Reagan Nat’l Advertising of Austin, LLC, 142 S. Ct. 1464, 1475 (2022).
Having considered both sides’ positions on the level of constitutional scrutiny to be
applied, the Court tends to agree with NetChoice that the restrictions in Act 689 are
subject to strict scrutiny. However, the Court will not reach that conclusion definitively at
this early stage in the proceedings and instead will apply intermediate scrutiny, as the
State suggests. Under intermediate scrutiny, a law must be “narrowly tailored to serve a
significant governmental interest.” Ward, 491 U.S. at 796, which means it must advance
that interest without "sweep[ing] too broadly” or chilling more constitutionally protected
speech than is necessary, and it must not “raise serious doubts about whether the statute
actually serves the state’s purported interest” by “leav[ing] [out]” and failing to regulate
“significant influences bearing on the interest,” Republican Party of Minn. v. White, 416
F.3d 738, 752 (8th Cir. 2005) (citations omitted and cleaned up).
Since Act 689 clearly serves an important governmental interest, the Court will
address whether the Act burdens adults’ and/or minors’ access to protected speech and
38 whether the Act is narrowly tailored to burden as little speech as possible while effectively
serving the State’s interest in protecting minors online.
b. Burdens on Adults’ Access to Speech
“The right of freedom of speech . . . includes not only the right to utter or to print,
but the right to distribute, the right to receive, the right to read and freedom of
thought . . . .” Griswold v. Connecticut, 381 U.S. 479, 482 (1965) (emphasis added and
citation omitted). An individual has the “right to read or observe what he pleases,” and
that right is “fundamental to our scheme of liberty” and cannot be restricted. Stanley v.
Georgia, 394 U.S. 557, 568 (1969). “[T]he State may not, consistently with the spirit of
the First Amendment, contract the spectrum of available knowledge.” Griswold, 381 U.S.
at 482.
Social media sites are, “for many . . . the principal sources for knowing current
events, checking ads for employment, speaking and listening in the modern public
square, and otherwise exploring the vast realms of human thought and knowledge.” See
Packingham, 582 U.S. at 107. Requiring adult users to produce state-approved
documentation to prove their age and/or submit to biometric age-verification testing
imposes significant burdens on adult access to constitutionally protected speech and
“discourage[s] users from accessing [the regulated] sites.” Reno v. American Civil
Liberties Union, 521 U.S. 844, 856 (1997). Age-verification schemes like those
contemplated by Act 689 “are not only an additional hassle,” but “they also require that
website visitors forgo the anonymity otherwise available on the internet.” Am. Booksellers
Found. v. Dean, 342 F.3d 96, 99 (2d Cir. 2003); see also ACLU v. Mukasey, 534 F.3d
39 181, 197 (3d Cir. 2008) (finding age-verification requirements force users to “relinquish
their anonymity to access protected speech”).
Other courts examining similar regulations have found that “[r]equiring Internet
users to provide . . . personally identifiable information to access a Web site would
significantly deter many users from entering the site, because Internet users are
concerned about security on the Internet and because Internet users are afraid of fraud
and identity theft on the Internet.” ACLU v. Gonzales, 478 F. Supp. 2d 775, 806 (E.D. Pa.
2007); see also PSINET, Inc. v. Chapman, 167 F. Supp. 2d 878, 889 (W.D. Va. 2001),
aff'd, 362 F.3d 227 (4th Cir. 2004) (“Fear that cyber-criminals may access their [identifying
information] . . . may chill the willingness of some adults to participate in the ‘marketplace
of ideas’ which adult Web site operators provide.”). The Court agrees. 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, which, as Mr. Allen testified, will likely require them
to upload official government documents and submit to biometric scans.
c. Burdens on Minors’ Access to Speech
Act 689 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, even as to minors. It follows that Act 689 obviously burdens minors’
First Amendment Rights. The Supreme Court instructs:
[M]inors are entitled to a significant measure of First Amendment protection, and only in relatively narrow and well-defined circumstances may
40 government bar public dissemination of protected materials to them. No doubt a State possesses legitimate power to protect children from harm, but that does not include a free-floating power to restrict the ideas to which children may be exposed. Speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them.
Brown v. Entertainment Merchants Ass’n, 564 U.S. 786, 794–95 (2011) (internal
quotation marks and citations omitted).
Neither the State’s experts nor its secondary sources claim that the majority of
content available on the social media platforms regulated by Act 689 is damaging,
harmful, or obscene as to minors. And even though the State’s goal of internet safety for
minors is admirable, “the governmental interest in protecting children does not justify an
unnecessarily broad suppression of speech addressed to adults.” Reno, 521 U.S. at 875;
see also Brown, 564 U.S. at 804–05 (“Even where the protection of children is the object,
the constitutional limits on governmental action apply.”).
d. Act 689 is Not Narrowly Tailored
Using the State’s analogy, if a social media platform is like a bar, Act 689 contemplates parents dropping their children off at the bar without ever having to pick them up again.
As described above, Act 689 burdens both adults’ and minors’ access to
constitutionally protected speech. The State asserts an important governmental objective
for doing so. To withstand challenge under intermediate scrutiny, then, Act 689 must be
narrowly tailored to avoid unduly burdening Arkansans’ First Amendment rights.
The Court first considers the Supreme Court’s narrow-tailoring analysis in Brown
v. Entertainment Merchants Association, which involved a California law prohibiting the
41 sale or rental of violent video games to minors. 564 U.S. at 802. The state “claim[ed]
that the Act [was] justified in aid of parental authority: By requiring that the purchase of
violent video games [could] be made only by adults, the Act ensure[d] that parents [could]
decide what games [were] appropriate.” Id. The Brown Court recognized that the state
legislature’s goal of “addressing a serious social problem,” namely, minors’ exposure to
violent images, was “legitimate,” but where First Amendment rights were involved, the
Court cautioned that the state’s objectives “must be pursued by means that are neither
seriously underinclusive nor seriously overinclusive.” Id. at 805. “As a means of
protecting children from portrayals of violence, the legislation [was] seriously
underinclusive, not only because it exclude[d] portrayals other than video games, but also
because it permit[ted] a parental . . . veto.” Id. If the material was indeed “dangerous
[and] mindaltering,” the Court explained, it did not make sense to “leave [it] in the hands
of children so long as one parent . . . says it’s OK.” Id. at 802. Equally, “as a means of
assisting concerned parents,” the Court held that the regulation was “seriously
overinclusive because it abridge[d] the First Amendment rights of young people whose
parents . . . think violent video games are a harmless pastime.” Id. at 805. Put simply,
the legislation was not narrowly tailored.
In the end, the Brown Court rejected the argument “that the state has the power to
prevent children from hearing or saying anything without their parents’ prior consent,” for
“[s]uch laws do not enforce parental authority over children’s speech and religion; they
impose governmental authority, subject only to a parental veto.” 564 U.S. at 795, n.3.
“This is not the narrow tailoring to ‘assisting parents’ that restriction of First Amendment
42 rights requires.” Id. at 804. The Court also expressed “doubts that punishing third parties
for conveying protected speech to children just in case their parents disapprove of that
speech is a proper governmental means of aiding parental authority.” Id. at 802.
“Accepting that position would largely vitiate the rule that ‘only in relatively narrow and
well-defined circumstances may government bar public dissemination of protected
materials to [minors].’” Id. (quoting Erznoznik v. City of Jacksonville, 422 U.S. 205, 212–
213 (1975)).
The State regulation here, like the one in Brown, is not narrowly tailored to address
the harms that the State contends are encountered by minors on social media. The State
maintains that Act 689’s exemptions are meant to precisely target the platforms that pose
the greatest danger to minors online, but the data do not support that claim.
To begin with, the connection between these harms and “social media” is ill
defined by the data. It bears mentioning that the State’s secondary sources refer to
“social media” in a broad sense, though Act 689 regulates only some social media
platforms and exempts many others. For example, YouTube is not regulated by Act 689,
yet one of the State’s exhibits discussing the dangers minors face on “social media”
specifically cites YouTube as being “the most popular online activity among children aged
3–17” and notes that “[a]mong all types of online platforms, YouTube was the most widely
used by children . . . .” See OfCom, Children and parents: media use and attitudes report
2022, Mar. 30, 2022, https://www.ofcom.org.uk/__data/assets/pdf_file/0024/234609/
childrens-media-use-and-attitudes-report-2022.pdf (cited in Declaration of Tony Allen,
States’ Hearing Exhibit 1, p. 23 n.10).
43 Likewise, another State exhibit published by the FBI noted that “gaming sites or
video chat applications that feel familiar and safe [to minors]” are common places where
adult predators engage in financial “sextortion” of minors. See State’s Hearing Exhibit 6.
However, Act 689 exempts these platforms from compliance. Mr. Allen, the State’s
expert, criticized the Act for being “very limited in terms of the numbers of organizations
that are likely to be caught by it, possibly to the point where you can count them on your
fingers. . . .” He then stated that he did not “want to be unkind to the people who drafted
[Act 689],” but at least some exempt platforms are ones that adult sexual predators
commonly use to communicate with children, including Kik and Kik Messenger, Google
Hangouts, and interactive gaming websites and platforms.
The Court asked the State’s attorney why Act 689 targets only certain social media
companies and not others, and he responded that the General Assembly crafted the Act’s
definitions and exemptions using the data reported in an article published by the National
Center for Missing and Exploited Children (“NCMEC”). See 2022 CyberTipline Reports
by Electronic Service Providers (ESP) 1, National Center for Missing & Exploited Children
(2023), https://www.missingkids.org/content/dam/missingkids/pdfs/2022-reports-by-
esp.pdf (State’s Hearing Exhibit 9). This article lists the names of dozens of popular
platforms and notes the number of suspected incidents of child sexual exploitation that
each self-reported over the past year. The State selected what it considered the most
dangerous platforms for children—based on the NCMEC data—and listed those platforms
in a table in its brief. See Doc. 34, p. 16.
44 During the hearing, the Court observed that the data in the NCMEC article lacked
context; the article listed raw numbers but did not account for the amount of online traffic
and number of users present on each platform. The State’s attorney readily agreed,
noting that “Facebook probably has the most people on it, so it’s going to have the most
reports.” But he still opined that the NCMEC data was a sound way to target the most
dangerous social media platforms, so “the highest volume [of reports] is probably where
the law would be concentrated.”
Frankly, if the State claims Act 689’s inclusions and exemptions come from the
data in the NCMEC article, it appears the drafters of the Act did not read the article
carefully. Act 689 regulates Facebook and Instagram, the platforms with the two highest
numbers of reports. But, the Act exempts Google, WhatsApp, Omegle, and Snapchat—
the sites with the third-, fourth-, fifth-, and sixth-highest numbers of reports. Nextdoor is
at the very bottom of NCMEC’s list, with only one report of suspected child sexual
exploitation all year, yet the State’s attorney noted during the hearing that Nextdoor would
be subject to regulation under Act 689.
None of the experts and sources cited by the State indicate that risks to minors are
greater on platforms that generate more than $100 million annually. Instead, the research
suggests that it is the amount of time that a minor spends unsupervised online and the
content that he or she encounters there that matters. However, Act 689 does not address
time spent on social media; it only deals with account creation. In other words, once a
minor receives parental consent to have an account, Act 689 has no bearing on how
much time the minor spends online. Using the State’s analogy, if a social media platform
45 is like a bar, Act 689 contemplates parents dropping their children off at the bar without
ever having to pick them up again. The Act only requires parents to give express
permission to create an account on a regulated social media platform once. After that, it
does not require parents to utilize content filters or other controls or monitor their
children’s online experiences—something Mr. Allen believes the real key to keeping
minors safe and mentally well on social media.
The State’s brief argues that “requiring a minor to have parental authorization to
make a profile on a social media site . . . . means that many minors will be protected from
the well-documented mental health harms present on social media because their parents
will have to be involved in their profile creation” and are therefore “more likely to be
involved in their minor’s online experience.” (Doc. 34, p. 19). But this is just an
assumption on the State’s part, and there is no evidence of record to show that a parent’s
involvement in account creation signals an intent to be involved in the child’s online
experiences thereafter. Mr. Allen testified to that effect in the following colloquy with the
Court:
THE COURT: Okay. Let’s say that the parental consent is legitimate. The 17-year-old goes to mom or dad and says, “All my friends are on Facebook, I want to be able to communicate with them on Facebook, will you sign this consent, will you provide your driver’s license, will you sit down for 10 minutes,” or however long it takes, and mom or dad says, “yes.” Does that automatically mean, just because the parent has given their consent, that the 17-year-old won’t surf to content that is harmful to them?
MR. ALLEN: No. It will answer the question that they were asked: “Can I have . . . consent to have an account.” But . . .
46 it’s then down to the company’s policies of how it treats users that it knows are under 18 and what material it makes available to them.
THE COURT: So, you are saying that the parents will still have to stay involved in overseeing the content that their minor child views?
MR. ALLEN: They may do . . . . Those controls can either be web- based or device-based and they can be tailored and they can be—some of them are quite advanced in terms of what they will and won’t allow you to access. And they can be updated as well by the parents.
THE COURT: Parental controls?
THE WITNESS: Yes.
Finally, the Court concludes that Act 689 is not narrowly tailored to target content
harmful to minors. It simply impedes access to content writ large. Consider the differences
between Act 689 and the UK’s Online Safety Bill. Mr. Allen, who worked on the UK
legislation, testified that the UK’s main concern was preventing minors from accessing
particular content, whereas Arkansas will require age verification at the time of account
creation, regardless of the content. It appears the UK’s approach is more consistent with
Supreme Court precedent than Arkansas’s approach. In Packingham, the Court
observed that it was possible for a state to “enact specific, narrowly tailored laws” targeted
to “conduct that often presages a sexual crime, like contacting a minor or using a website
to gather information about a minor”; but it would be unconstitutional for a state to unduly
burden adult access to social media. 582 U.S. at 106–07.
Age-verification requirements are more restrictive than policies enabling or
encouraging users (or their parents) to control their own access to information, whether
47 through user-installed devices and filters or affirmative requests to third-party companies.
“Filters impose selective restrictions on speech at the receiving end, not universal
restrictions at the source.” Ashcroft v. ACLU, 542 U.S. 656, 657 (2004). And “[u]nder a
filtering regime, adults . . . may gain access to speech they have a right to see without
having to identify themselves[.]” Id. Similarly, the State could always “act to encourage
the use of filters . . . by parents” to protect minors. Id.; see also United States v. Playboy
Entertainment Group, 529 U.S. 803, 809–10, 815 (2000) (finding that voluntary, “targeted
blocking” of certain content by viewers “is less restrictive than banning” the same content).
In sum, NetChoice is likely to succeed on the merits of the First Amendment claim
it raises on behalf of Arkansas users of member platforms. The State’s solution to the
very real problems associated with minors’ time spent online and access to harmful
content on social media is not narrowly tailored. Act 689 is likely to unduly burden adult
and minor access to constitutionally protected speech. If the legislature’s goal in passing
Act 689 was to protect minors from materials or interactions that could harm them online,
there is no compelling evidence that the Act will be effective in achieving those goals.
C. Irreparable Harm
Because Act 689 contains terms too vague to be reasonably understood,
NetChoice members are likely to suffer irreparable harm if the Act goes into effect. It is
unclear which NetChoice members will be subject to regulation, and several terms that
are pivotal to NetChoice members’ compliance with Act 689 are undefined or subject to
multiple interpretations. Separately, Act 689 is likely to abridge the First Amendment
rights of users of NetChoice’s members’ platforms, which will cause those users to suffer
48 irreparable harm. No legal remedy exists to compensate Arkansans for the loss of their
First Amendment rights. Nat’l People’s Action v. Vill. of Wilmette, 914 F.2d 1008, 1013
(7th Cir. 1990). “Loss of First Amendment freedoms, even for minimal periods of time,
constitute[s] irreparable injury.” Ingebretsen v. Jackson Public Sch. Dist., 88 F.3d 274, 280
(5th Cir. 1996) (citing Elrod v. Burns, 427 U.S. 347, 373 (1976)).
D. Balance of the Equities and the Public Interest
When the government opposes the issuance of a preliminary injunction, the final
two factors—the balance of the equities and the public interest—merge. See Nken v.
Holder, 556 U.S. 418, 435 (2009). The balance of the equities and public interest
decidedly favor NetChoice, given the likelihood that Act 689 will infringe the public’s First
Amendment rights. Act 689 is not targeted to address the harms it has identified, and
further research is necessary before the State may begin to construct a regulation that is
narrowly tailored to address the harms that minors face due to prolonged use of certain
social media. 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. The many exemptions in Act 689 all but nullify the
State’s purposes in passing the Act and ignore the State’s expert’s view that parental
oversight is what is really needed to insulate children from potential harms that lurk on
the internet.
V. CONCLUSION
For the reasons explained herein, Plaintiff’s Motion for Preliminary Injunction (Doc.
17) is GRANTED. Act 689 of 2023, the “Social Media Safety Act,” is PRELIMINARILY
49 ENJOINED under Federal Rule of Civil Procedure 65(a), pending final disposition of the
issues on the merits.
31st day of August, 2023. IT IS SO ORDERED on this ____
_____________________________ TIMOTHY L. BROOKS UNITED STATES DISTRICT JUDGE
Related
Cite This Page — Counsel Stack
NetChoice, LLC v. Griffin, Counsel Stack Legal Research, https://law.counselstack.com/opinion/netchoice-llc-v-griffin-arwd-2023.