NetChoice Reply Cites ‘Pressing Need’ to Block Enforcement of Ark. Social Media Law

AG Tim Griffin (R) defends SB-396 as a restriction “on where minors can go rather than what minors can see,” and tries to liken it to age restrictions on bars and casinos, said NetChoice’s reply. But the state’s own claimed interests “turn on harms from what minors see and hear online,” it said. Restrictions on bookstores, libraries and debating societies, all of which would “plainly violate” the First Amendment, “are better analogies,” it said.

Beyond that “fundamental defect,” SB-396 “is riddled with content-, speaker-, and even viewpoint-discriminatory provisions and is hopelessly vague,” said NetChoice’s reply. “Every equitable factor supports enjoining this law before it inflicts irreparable injury,” it said.

Griffin is “unable to reconcile” SB-396 with “the bedrock principle that the First Amendment prohibits the government from suppressing speech,” said NetChoice’s reply. He then “simply proceeds” as if that principle doesn’t exist, it said. He barely acknowledges the “mountain” of U.S. Supreme Court and 8th Circuit U.S. Court of Appeals cases “invalidating government efforts to prevent minors from accessing supposedly harmful protected expression,” it said. Griffin then tries to avoid the First Amendment altogether, first by claiming NetChoice lacks standing, and then by claiming that restricting access to social media doesn’t “implicate” the First Amendment, the reply said: “Those arguments strain credulity.”

SB-396 “directly regulates” NetChoice members, “saddling them with compliance costs and restricting them from disseminating speech,” said the reply. Those financial and First Amendment injuries “suffice both to satisfy Article III and to permit NetChoice and its members to vindicate the First Amendment rights of the members and their users under a long line of cases that the state ignores,” it said. The notion that SB-396 regulates minors’ admission to social media, not what minors are able to say or hear, as Griffin contends, “blinks reality,” it said.

People seek to be admitted to social media “so they can access and participate in speech on those services,” said NetChoice’s reply. That’s why SCOTUS, in its 2017 decision in Packingham v. North Carolina already said government restrictions on accessing social media services prevent users from engaging in the legitimate exercise of First Amendment rights, it said.

When Griffin does finally turn to the First Amendment, his efforts to evade strict scrutiny “fare no better,” said NetChoice’s reply. He insists SB-396 isn’t content-based because its various distinctions are purportedly directed at the place where a message is expressed, not the message itself, it said. But he acknowledges elsewhere, as he must, that SB-396 distinguishes among places based on the subject of the speech they supply, it said. He argues SB-396 is “speaker-neutral,” but then concedes the law “applies to some online services but not others,” it said. Griffin denies SB-396 discriminates based on viewpoint, but he has “no answer” to the fact it “explicitly distinguishes” educational or informative takes from other viewpoints, it said.

In Griffin’s efforts “to satisfy strict scrutiny,” his brief is long on the state’s “professed interests” and short on “narrow tailoring,” said NetChoice’s reply. Despite “spilling significant ink” on the supposed harmful effects of social media, even his own primary source acknowledges social media “has many benefits,” it said. SCOTUS precedent requires actual proof of a direct causal link connecting speech to harm before the First Amendment rights of minors “may be curtailed,” it said.

SB-396 isn’t “remotely tailored,” said NetChoice’s reply. The law restricts minors from accessing “wide swaths of innocuous” speech on “disfavored” online services, it said. But it exempts services like Discord, Mastodon, Truth Social, YouTube, Parler and Xbox Live, “even though minors may come across indistinguishable material on those services,” it said. It allows minors to access “all the very same sites and content that purportedly expose them to all sorts of harms so long as one parent agrees to sign them up for an account," it said. Griffin “barely even tries to explain why less restrictive alternatives like the multitude of filtering technologies and settings already available to parents are unworkable,” it said.

Though Griffin admits abridgment of First Amendment rights is a “quintessential irreparable injury,” he nevertheless insists the equities tip in the state’s favor “because of its interest in protecting children,” said NetChoice’s reply. But that assertion is “considerably undermined” by the state’s four-month delay in implementing the law “and by the continuing ability of minors to access similar material on unregulated sites,” it said. The court should enjoin Griffin from enforcing SB-396, it said.

Griffin’s challenge to NetChoice’s Article III standing is “borderline frivolous,” said the reply. Standing requires an injury in fact that’s concrete, particularized and actual or imminent, it said. It also requires an injury that’s “traceable to the challenged action of the defendant" and that would likely be “redressed by judicial relief,” it said.

SB-396 directly regulates NetChoice members “and imposes massive compliance costs on them,” said NetChoice’s reply. Recent case law shows a “pocketbook injury” is a “prototypical form of injury in fact,” and that injury is “directly traceable” to SB-396, it said. A preliminary injunction enjoining Griffin from enforcing the law “will redress that injury,” it said. Griffin doesn’t dispute that NetChoice “meets the other requirements for associational standing,” it said: “Article III requires nothing more.”