NetChoice Moves for Summary Judgment vs. Ark. Social Media Safety Act

NetChoice wants U.S. District Judge Timothy Brooks for Western Arkansas in Fayetteville to grant summary judgment in its favor, enter a declaratory judgment that the social media act (SB-396) is “facially unconstitutional,” and convert the preliminary injunction into a permanent one, said its motion (docket 5:23-cv-05105). NetChoice telegraphed the summary judgment strategy last month when it said that it believes its court challenge to SB-396 “is appropriate for resolution as a matter of law,” and that it would soon file an “early dispositive motion” to that effect (see 2310240010).

NetChoice believes the case “presents pure questions of constitutional law that are ripe for resolution based on widely known facts about which there can be no genuine dispute,” said its motion. Under those circumstances, discovery “is neither necessary nor appropriate,” it said. Should the court disagree, and order a period of discovery, NetChoice “reserves the right to file another motion for summary judgment after the close of discovery,” it said.

In a Nov. 15 email exchange with Griffin’s counsel, the Arkansas AG declined to state a “definitive” position on a motion for summary judgment he hadn’t seen, but he asserted the state “is still fully defending the law,” said the NetChoice motion. Griffin’s office didn’t comment Wednesday. In a position statement last month, his office disagreed the case is appropriate for a stay of all discovery or for immediate resolution, as NetChoice prefers.

SB-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,” said NetChoice’s brief Tuesday in support of its motion for summary judgment. The U.S. Supreme Court has repeatedly held that, while the government wields legitimate power to protect children from harm, that doesn’t include a free-floating power to restrict the ideas to which children may be exposed, it said.

Government efforts to restrict minors from accessing images or speech that the authorities deem harmful, including by requiring parental consent to do so, “have repeatedly been struck down,” said the NetChoice brief. That’s especially so when, as is often the case, “they impede the First Amendment rights of adults and corporate speakers, too,” it said.

SB-396 “should meet the same fate,” said the brief. The statute purports to protect minors from the harmful effects of social media by requiring some companies that operate those services to verify that every person seeking to create an account is at least 18 years old or has obtained parental consent, it said. SB-396's requirements “burden a mind-boggling amount of First Amendment-protected activity,” it said.

Even worse, SB-396 “draws a slew of content-, speaker-, and viewpoint-based distinctions,” said the brief. It 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 permits users to share video gaming content,” it said. 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,” it said.

SB-396 doesn’t even restrict access “to supposedly harmful content in a sensible, let alone tailored, way,” said the brief. The state asserts that SB-396 regulates Facebook, X, Instagram and Nextdoor, but it doesn’t cover YouTube, Mastodon, Discord, BeReel, Gab, Truth Social, Imgur, Brainly, DeviantArt or Twitch, it said.

SB-396 thus restricts access to political expression on X and photography on Instagram, “but places no restrictions on the exact same expression on Truth Social or DeviantArt,” said the brief. The law also allows minors “to access all of the services and content that the state contends are too harmful for them, with no ongoing parental or other oversight whatsoever, so long as a parent agrees they can sign up for an account,” it said.

As the court explained in granting NetChoice a preliminary injunction, SB-396 violates the Constitution “in at least two distinct ways,” said the brief. It violates the First Amendment because it’s not “narrowly tailored to serve the state’s asserted interest in protecting minors,” it said. It’s also unconstitutionally vague because it fails to adequately define which entities are subject to its requirements, it said.

Because the problems with SB-396 “are so glaring,” no further factual development through discovery is needed to confirm that the law is “facially unconstitutional,” said the brief. There can be “no genuine dispute” that SB-396 “burdens protected speech, and its abject lack of tailoring is evident on its face,” it said.

One needs only to read the statute to confirm that its “vague, exception-riddled definitions” of social media companies and platforms “fail to provide clear notice of what they do and do not cover,” said the brief. Under those circumstances, discovery “is wholly unnecessary and would accomplish nothing more than to further chill the First Amendment rights of NetChoice and its members,” it said.