ACLU & Others Back Case Against Arkansas Social Media Safety Act

LITTLE ROCK—A coalition of civil liberties and digital rights advocacy organizations have filed an amicus brief in support of a lawsuit challenging a social media age verification law in the state of Arkansas. In a press statement released on July 14, the American Civil Liberties Union (ACLU), the ACLU of Arkansas, and the Electronic Frontier Foundation announced their support for the plaintiffs in the case of NetChoice LLC v. Tim Griffin, which seeks a federal preliminary injunction to block the Arkansas government’s ability to enforce the Social Media Safety Act. NetChoice is a trade association featuring members like the parent company of Facebook and Instagram, Meta Platforms, and other companies like TikTok, Alibaba, Amazon, Google, Airbnb and other major digitally-native companies. In the lawsuit against Griffin, the attorney general of Arkansas, counsel for NetChoice—featuring attorneys from the law firm of Arlington, VA-based Clement & Murphy PLLC—alleges that the Social Media Safety Act violates the First Amendment rights of social media users who are now required to verify their age to access such websites. NetChoice is “suing Arkansas today to protect First Amendment rights and keep online speech accessible,” said Chris Marchese, the director of the NetChoice Litigation Center, in a press release on June 29 announcing the initial filings. “This law empowers the state to tell Arkansans what types of information they’re allowed to access online, forces them to hand over their most sensitive documents to use the internet, and seizes decision making from parents and families.” NetChoice was filed in the Fayetteville Division of the U.S. District Court for the Western District of Arkansas. ACLU, ACLU of Arkansas, and the Electronic Frontier Foundation (EFF) filed in the same jurisdiction, as is typically the legal procedure for high-profile strategic litigation cases like this one. Vera Eidelman, senior staff attorney with the ACLU’s Speech, Privacy, and Technology Project, said in the press release announcing the amici filing that “Arkansas is essentially trying to card people before they can use the internet. ... Even where protection of children is the aim, the government can’t use such wide-ranging means.”  The American Civil Liberties Union has been active for decades arguing that age-gating entire swaths of the internet is an infringement on everybody’s First Amendment rights. By referring to the historical prestige case of Reno v. American Civil Liberties Union, the U.S. Supreme Court under then-chief justice William Rehnquist gutted the Communications Decency Act of 1996 and retained the now-crucial statute found in Section 230 of the act. If it weren’t for the ACLU in this case, the internet would be age-gated and restricted to degrees that present-day internet users would characterize as puritanical and overly censorious. This case also interpreted Section 230, in its first context, as the “First Amendment of the internet” granting web platforms a safe harbor that enables them to self-regulate free of extreme governmental overreach. Many other cases involving the ACLU, like the 2016 case of Garden District Book Shop v. Caldwell, add further precedent that online age verification measures, regardless of their target and intention, are by all means a violation of the First Amendment and other amendments in the U.S. Constitution. In Garden District Book Shop, a federal judge blocked a Louisiana online age verification law that was implemented in an effort to prevent minors from purchasing age-restricted content from online bookstores and other outlets. However, Louisiana didn’t learn its lesson when it became the first state in the union to require age verification in order to access online porn sites. In this context, Louisiana and other states who’ve implemented age verification laws on porn sites and social media now face an onslaught of lawsuits. For example, the Free Speech Coalition and a class of plaintiffs including a military couple who've gone viral over their right to watch porn have sued Louisiana to invalidate that specific law. Other lawsuits include Free Speech Coalition’s filing in Utah federal court and, now, the NetChoice suit challenging social media age checks. “This misguided attempt to ‘protect’ Arkansans ironically threatens to strip away our civil rights,” said Holly Dickson, the executive director of ACLU of Arkansas, in the statement regarding the Arkansas amicus filing in the NetChoice lawsuit against the attorney general. “This law is an affront to our freedom of expression and right to privacy, and a stark reflection of an alarming trend where our fundamental rights as Arkansans are being eroded under the guise of security.” “Nearly every time a new communications technology emerges, some in society fear the effects it will have on children,” argues ACLU-led counsel featuring Dickson in the amicus brief. Gov. Sarah Huckabee Sanders, the Trump White House press secretary turned Republican politico, signed the Social Media Safety Act (Senate Bill 396 during the legislative session, now Act 689) into law in April 2023. In a show of lobbying prowess by a number of affected companies, there are strategically placed carveouts for platforms that “allow a user to generate short video clips of dancing, voice overs, or other acts of entertainment.” Services like TikTok and Snapchat meet this criteria in some format or another. Another carveout appears to add further confusion as it exempts businesses that offer “cloud storage services, enterprise cybersecurity services, educational devices, or enterprise collaboration tools for kindergarten through grade twelve (K-12) schools; and derives less than twenty-five percent of the company’s revenue from operating a social media platform, including games and advertising.” This could, essentially, exempt YouTube due to the portfolio held by Google and its parent company, Alphabet. Still another carveout is included for companies that make less than $100 million in revenue, which The Verge points out exempts right-wing alternative social sites like Donald Trump-backed Truth Social and the far-right video streaming platform Rumble. Of related note, Gov. Sanders is one of several governors in the United States to block TikTok on state-owned devices due to concerns over surveillance perpetrated by Communist China. In another case, Attorney General Tim Griffin sued Meta and TikTok on behalf of Arkansas and with the endorsement of Gov. Sanders. Both allege big tech companies are lying to their users.