Arkansas’ Social Media Safety Act Permanently Enjoined—NetChoice v. Griffin

April 15, 2025 · by · in Content Regulation

NetChoice challenged Arkansas Act 689 of 2023, the “Social Media Safety Act.” This is a segregate-and-suppress law: the law requires some social media platforms to age-authenticate all users and prevent minors from opening accounts without parental consent. The court preliminarily enjoined the law in 2023. Unsurprisingly, the permanent injunction opinion covers a lot of the same ground as the prior opinion.

Scrutiny Level. Rather than address whether the social media platforms are engaging in expressive activity, the court focuses on the law’s effects on users:

Act 689 forecloses access to social media for those minors whose parents do not consent to the minor’s use of social media. It also burdens social media access for all Arkansans—both adults and minors whose parents would allow them to use social media. Requiring adult users to produce state-approved documentation to prove their age and/or submit to biometric age-verification testing imposes significant burdens on adult access to constitutionally protected speech and “discourage[s] users from accessing [the regulated] sites.”… the age-verification requirement will deter adults from speaking or receiving protected speech on social media.

Due to the various entities that are excluded from the definition of social media platforms, the court says the ban is content-based. “A website operating in Arkansas, an enforcement official, a court, or a jury applying the Act, cannot determine whether the website is regulated without looking to the content posted on that website.” The law is also speaker-based because it “privileges institutional content creators—movie and TV studios, mainstream media outlets, and traditional journalists—over the Soundcloud artist, the TikTok chef, and the citizen journalist.” As a result, strict scrutiny applies.

Means-Fit. “The Court does not doubt the reality, well supported by the record, that unfettered social media access can and does harm minors.” (Well, actually…the psychologists routinely reject overbroad claims like this. Causality is complicated).

Nevertheless, the definitions of social media platform undermine the law’s efficacy. As it did with the preliminary injunction, the court rejects the state’s argument regarding the volume of Cybertips submitted by a service acts as a measure of how pervasively the service harms children, because the law inconsistently applies to services that have few Cybertips and excludes services that make many Cybertips. Similarly, the law doesn’t adequately address concerns about sextortion because the law inconsistently applies to services where sextortion is a higher risk. Similarly, concerns about the psychological effects of private messaging services are not properly addressed because the law excludes many leading private messaging services. The court also again notes the illogic of trying to protect children by giving a one-time parental veto over service usage.

The court also calls the age authentication requirement “maximally burdensome.” (I believe Bill and Ted would have agreed). The court notes multiple problems with age authentication requirements, and also notes how the state could do more to promote the many existing parental-control tools available in the market.

Vagueness. The law’s weak definition of social media platform strikes again, in particular with respect to phrases like “primary purpose” and “substantial function” and “predominate function.” The court also notes the uncertainties about whether Snapchat, Nextdoor, and Pinterest are covered under the definitions.

Case Citation: NetChoice LLC v. Griffin, 2025 WL 978607 (W.D. Ark. March 31, 2025)

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