Arkansas social media age verification law struck down by federal court

This story is republished from Arkansas Advocate. Read the original article.

A federal judge on Thursday blocked Arkansas’ new social media age verification law aimed at protecting children online hours before it was set to take effect.

The law—a priority of Gov. Sarah Huckabee Sanders—would’ve been the first of its kind implemented in the U.S., requiring new users on large social networks—like Facebook, Twitter and TikTok—to release personal information proving their age.

Similar restrictions have been enacted in Utah, Texas and Louisiana, but they won’t take effect until next year.

U.S. District Judge Timothy Brooks acknowledged the importance of protecting minors online, but he granted the preliminary injunction requested by NetChoice, the nonprofit trade association for large tech companies that brought the lawsuit.

In the order, Brooks said the drafters of the law did a poor job, writing legislation that was too vague, overbroad and violated Arkansans’ First Amendment rights.

The preliminary injunction blocks the law from taking effect on Friday, as intended. It will remain on hold until the case’s final adjudication. He wrote in the ruling that NetChoice had demonstrated a strong likelihood of succeeding on its argument the law should be permanently struck down as unconstitutional.  

“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,” Brooks wrote in the 50-page ruling. 

“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.”

Act 689 of 2023, enacted in April, requires large social media companies to use a vendor for “reasonable age verification” before allowing access to their sites. Those under 18 may only access sites with parental permission.

Proof of age could include a digital copy of a driver’s license, government ID or other “commercially reasonable” method.

Brooks’ ruling is likely to be appealed.

Gov. Sanders in a statement on social media said: “Big Tech companies put our kids’ lives at risk. They push an addictive product that is shown to increase depression, loneliness, and anxiety and puts our kids in human traffickers’ crosshairs. Today’s court decision delaying this needed protection is disappointing but I’m confident the Attorney General will vigorously defend the law and protect our children.“

Arkansas Attorney General Tim Griffin expressed disappointment in the decision.

“I am disappointed in the ruling, but I will continue to vigorously defend the law and protect our children, an important interest recognized in the federal judge’s order today,” Griffin said in a statement.

Chris Marchese, director of the NetChoice Litigation Center, said the law was a power grab that would’ve required Arkansans to hand over private information.

“We’re pleased the court sided with the First Amendment and stopped Arkansas’ unconstitutional law from censoring free speech online and undermining the privacy of Arkansans, their families and their businesses as our case proceeds,” said Chris Marchese, Director of the NetChoice Litigation Center. “We look forward to seeing the law struck down permanently.” 

The new regulation applies to the largest social media companies, like Meta, which owns Facebook and Instagram; TikTok; Twitter; Snapchat; and others.

It does not apply to platforms that generate less than $100 million in gross annual revenue and is written in a way that exempts some platforms, like YouTube, LinkedIn, online video games, email and messenger services, streaming sites and e-commerce.

Whether a network is affected by the new law hinges on what its predominant function is. However, Brooks—an appointee of former President Barack Obama—said the term wasn’t adequately defined.

“Act 689 does not explain how platforms are to determine which function is ‘predominant,’ leaving those services to guess whether they are regulated,” Brooks wrote.

If someone is under 18, Act 689 requires sites to confirm that the minor has a parent’s permission, and online companies could be civilly and criminally liable if they knowingly fail to perform reasonable age verification.

Violation could also require platforms to pay penalties to an individual, including a $2,500 fine for each infraction and damages resulting from a minor accessing social media without permission.

Social media companies and the third-party vendors must not keep any identifying information gathered during the age verification process once access to the platform has been granted.

The state has argued that the law is necessary to protect children from the ills of social media, including sexual predators, content related to self-harm and cyberbullying. It likened the law to prohibitions on minors in bars and casinos.

“But this analogy is weak,” Brooks wrote. “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.”