NetChoice to Move for ‘Early’ Resolution of Ark. Social Media Law Challenge

NetChoice believes its court challenge to SB-396, the Arkansas age-verification Social Media Safety Act, “is appropriate for resolution as a matter of law,” and it therefore “intends to file an early dispositive motion” to that effect, said its position statement in a joint Rule 26(f) report Monday (docket 5:23-cv-05105) in U.S. District Court for Western Arkansas in Fayetteville.

To conserve judicial resources, NetChoice thinks all discovery, including initial disclosures, “should be stayed pending resolution of its dispositive motion,” said the association’s position statement in the report. Arkansas Attorney General Tim Griffin (R) has no objections to providing initial disclosures, but disagrees that the case is appropriate for a stay of all discovery or for immediate resolution, said Griffin’s position statement.

U.S. District Judge Timothy Brooks granted NetChoice’s motion for a preliminary injunction to block Griffin’s enforcement of SB-396 (see 2309010024). He did so Aug. 31, just hours before SB-396 was to take effect early Sept. 1. Brooks found that NetChoice has standing to assert a constitutional challenge to SB-396 on behalf of its members and its members’ users. He also found that NetChoice’s arguments that SB-396 violates the First Amendment are likely to succeed on the merits.

SB-396 doesn’t restrict speech, “but rather it is a restriction on conduct,” said Griffin’s position statement in the Rule 26(f) report. “Like the multitude of laws” restricting minors’ access to bars, nightclubs and casinos, SB-396 “merely restricts where minors can be based on the harm the place can cause,” it said. The statute doesn’t restrict “what people can say or hear,” it said.

Though NetChoice doesn’t think that discovery is appropriate in the case and seeks a stay of discovery, the parties did conduct a “full” Rule 26(f) conference, said the report. Should the court deny entering a stay of discovery, NetChoice doesn’t oppose the state’s proposal to complete discovery within six months of the case management hearing, which is planned for Nov. 30 (see 2310120004).

In defending his position that the case isn’t appropriate for a stay of all discovery or for immediate resolution, Griffin argues that SB-396 “regulates social-media companies,” said the report. No social-media company “is a party to this case,” it said. Skipping discovery would allow NetChoice’s members, which include Meta, TikTok and X, the platform formerly known as Twitter, “to hide behind the veil of a Washington D.C. trade association,” it said.

That would give NetChoice and its members the freedom to produce “only the information and documentation that they deem necessary for NetChoice’s filings,” said the report. That also would leave Griffin “unable to conduct any meaningful inquiry into the materials NetChoice places in the record, including the veracity of the affidavits already submitted,” it said.

Conducting discovery won’t prejudice NetChoice, said Grifffin's position statement in the report. It would instead be prejudicial to Griffin, it said. With discovery, “this matter can be fully heard,” and Griffin will have “a fair chance to respond to any dispositive motion,” it said.

NetChoice doesn’t think that a trial will be necessary, based on its stated intentions to seek early disposition of the case and to stay discovery, said the report. But should the case nevertheless proceed to trial, NetChoice doesn’t object to Griffin’s “proposed time frame for providing initial expert disclosures and rebuttal expert disclosures,” it said. NetChoice doesn’t anticipate the use of expert witnesses at trial, “but reserves the right to call such witnesses,” it said.

Griffin, however, does anticipate the use of expert witnesses at trial, said his position statement in the report. He proposes providing initial expert disclosures by April 1 -- four months from the date of the case management hearing -- with rebuttal expert disclosures due 30 days after that, it said.

The parties’ “best estimate” is that it will take four days to “fully try the case,” said the report. The parties don’t consent to magistrate judge jurisdiction, and they agree that there’s “no prospects of settlement” in the case, it said.