NetChoice Challenges Yet Another Ridiculously Bad State Internet Law

Legal Issues

from the verify-this dept

NetChoice has been quite busy the last few years suing to stop a wide variety of terrible state laws designed to mess up parts of the internet. It took on Florida’s social media content moderation law and won (twice). It took on Texas’ social media content moderation law and won at the district court, and absolutely ridiculously lost at the 5th Circuit (something that we now need to hope the Supreme Court will fix next term). It sued California over its Age Appropriate Design Code.

And, now it’s sued Arkansas over its terrible, ridiculous, and extremely problematic social media age verification law. As we noted, Arkansas passed a bill to remove age verification for kids working in meat packing plants in the same session that it insisted kids needed age verification to use social media. Just incredible.

The NetChoice complaint lays out how we’ve been here before, with moral panic laws about “protecting the children” from this or that new media, and every time they’ve been struck down as unconstitutional infringements on people’s rights.

Arkansas Senate Bill 396 is the latest attempt in a long line of government efforts to restrict new forms of expression based on concerns that they harm minors. Books, movies, television, rock music, video games, and the Internet have all been accused in the past of exposing youth to content that has deleterious effects. But the U.S. Supreme Court has repeatedly held that, while the government undoubtedly possesses “legitimate power to protect children from harm,” “that does not include a free-floating power to restrict the ideas to which children may be exposed.” Brown v. Entm’t Merchants Ass’n, 564 U.S. 786, 794-95 (2011). “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.” Erznoznik v. City of Jacksonville, 422 U.S. 205, 213-14 (1975).

Accordingly, government efforts to restrict minors from accessing such materials, including by requiring parental consent to do so, have reliably and repeatedly been struck down, especially when (as is often the case) they impede the First Amendment rights of adults too. See, e.g., Brown, 564 U.S. at 794-95 (invalidating law prohibiting distribution of violent video games to minors without parental consent); Ashcroft v. Am. Civil Liberties Union, 542 U.S. 656 (2004) (enjoining law restricting access to sexually explicit materials on the Internet); Reno v. Am. Civil Liberties Union, 521 U.S. 844 (1997) (invalidating earlier law enacted to protect minors from “indecent” and “patently offensive” communications on the Internet); United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803 (2000) (invalidating law restricting sexual programing on television); Erznoznik, 422 U.S. at 213-14 (invalidating law prohibiting display of movies containing nudity at drive-in theaters); Interactive Digital Software Ass’n v. St. Louis Cnty., 329 F.3d 954 (8th Cir. 2003) (invalidating ordinance prohibiting distribution of violent video games to minors without parental consent); Video Software Dealers Ass’n v. Webster, 968 F.2d 684 (8th Cir. 1992) (invalidating law prohibiting distribution to minors of videos depicting certain types of violence).

And then it explains the many constitutional issues with this bill in particular:

S.B. 396 should meet the same fate. The Act purports to protect minors from alleged harmful effects of “social media” by requiring the companies that operate these services to verify that any person seeking to create an account is at least 18 years old or has parental consent to create an account. By restricting the access of minors—and adults (who now have to prove their age)—to these ubiquitous online services, Arkansas has “with one broad stroke” burdened access to what for many are the principal sources for speaking and listening, learning about current events, “and otherwise exploring the vast realms of human thought and knowledge.” Packingham v. North Carolina, 582 U.S. 98, 107 (2017)

Worse still, the Act does so by drawing a slew of content-, speaker-, and viewpointbased distinctions—making clear that its purpose and effect is “to restrict the ideas to which children may be exposed” and “protect the young from ideas or images that a legislative body thinks unsuitable for them.” Brown, 564 U.S. at 794-95. S.B. 396 restricts access to a website that permits users to share videos of their newest dance moves or other acts of entertainment, but not to a website that provides career development opportunities. Minors may readily access websites that provide news, sports, entertainment, and online shopping, but not those that allow them to upload their favorite recipes or pictures of their latest travels or athletic exploits. Moreover, the Act does not even restrict access to supposedly harmful content in any sensible way: It arguably applies to Facebook and Twitter, but not Mastadon, Discord, BeReel, Gab, Truth Social, Imgur, Brainly, DeviantArt, or Twitch. The Act thus appears to restrict access to political expression on Twitter and photography on Instagram but places no restrictions on the exact same expression on Truth Social or DeviantArt. While the state might think that some of those distinctions are sensible, the Supreme Court has long recognized that it is not the role of the government to decide what expressive materials minors should be allowed to access. The First Amendment leaves “these judgments … for the individual to make, not for the Government to decree.” Playboy, 529 U.S. at 818. And compounding the problems, the Act’s definitions of “social media company” and “social media platform” are hopelessly vague, leaving companies to guess whether they are regulated by the Act. The Act is also preempted in part by the Child Online Privacy Protection Act and contravenes the Commerce Clause too.

I won’t go through the complaint beat by beat, but this paragraph stood out to me:

There has long been some speech that many adults would prefer minors not hear. Some are opposed to minors reading The Adventures of Huckleberry Finn because it contains racial epithets. Others object to minors playing Grand Theft Auto because it depicts violence and criminality. Even so, the government typically cannot require certain works to be kept in an “adults only” section of the mall just because it deems them controversial, or require minors to receive permission from their parents before buying works that carry messages that the government deems too sophisticated for them. See, e.g., Brown, 564 U.S. at 786. Even when it comes to efforts to protect minors, the First Amendment commands that “esthetic and moral judgments about art and literature” and other forms of speech and expression “are for the individual to make, not for the Government to decree.”

Your moral panic is no excuse for the government to decide what is right for kids to read and when. It’s an issue for parents directly in some cases, and in other areas, it needs to be recognized that kids have rights themselves. Laws like these insert the government instead, and that’s a problem.

One hopes that the Supreme Court will eventually put a stop to all of these crazy state internet laws (which come from both red and blue states). In the meantime, though, state legislators seem to be pushing each other aside to see who can destroy the rights of kids (and adults) faster and more ridiculously.

Filed Under: age verification, arkansas, coppa, kids, protect the children, sb 396
Companies: netchoice