A planned 'Social Media Account Age Verification Act (Act 689 of 2023)' in Arkansas has been permanently struck down as unconstitutional following a final ruling by a federal court. Late last Monday, Judge Timothy L. Brooks of the U.S. District Court for the Western District of Arkansas issued an order permanently prohibiting the state from enforcing the law, stating that it "abridges the First Amendment rights of Arkansans."

Act 689, a key promise of Arkansas Governor Sarah Huckabee Sanders, would have mandated age verification for all social media platform users in the state and required parental consent for minors under 18 to access these platforms. It was the first law of its kind in the United States and sparked significant controversy even before its implementation.

In his ruling, Judge Brooks clearly stated that Act 689 is a "content-based restriction on speech that is not narrowly tailored to serve a compelling government interest," thus violating the First Amendment. He also noted that the law infringes upon the due process rights of the plaintiffs who filed the lawsuit.

This ruling marks the first permanent injunction obtained by 'NetChoice,' a non-profit trade association representing major technology companies, in its legal challenges against similar laws. NetChoice has argued that these laws infringe upon free expression online and harm business operations. Chris Marchese, NetChoice's litigation counsel, said in a statement, "This ruling confirms NetChoice's argument that restricting access to protected expression violates the First Amendment." He further added, "It protects Americans from having to submit identification or biometric data to access constitutionally protected expression online and reaffirms that parents—not politicians or bureaucrats—decide what content is appropriate for their children."

In response, Arkansas Attorney General Tim Griffin issued a statement on Tuesday respecting the court's decision and indicating that his office is reviewing its next steps. Governor Sanders had urged the state legislature in her January address to amend Act 689 to ensure it could be implemented without being held up in court. No such amendments have been introduced to date, but Republican Senator Bart Hester told the media last week that revisions were "likely to happen in some way," given the governor's strong commitment.

Judge Brooks' 41-page ruling granted NetChoice's motion for summary judgment, stating that "NetChoice’s members and their users will suffer irreparable harm if Act 689 is allowed to take effect." The judge explained that this is because the law "abridges the First Amendment rights of Arkansans who use social media and is impermissibly vague, rendering it difficult to reasonably understand."

Judge Brooks acknowledged the state's compelling interest in protecting minors, stating, "The Court does not doubt, as the record amply demonstrates, that unfettered access to social media can be harmful to minors." However, he also cited other court precedents, emphasizing that "the State does not have the power to freely limit the ideas to which children may be exposed."

The judge pointed out that the law is "maximally burdensome" on both social media platforms and their users. He criticized that "instead of erecting barriers to specific content or features that give rise to concern, Act 689 erects a barrier to the very access of the entire social media platform itself," which "not only hinders adults’ rights to speak and access information online, but it also excludes minors who do not obtain—or cannot evidence—parental consent from accessing internet fora."

Judge Brooks dismissed the legislature's intent, stating, "If the intent of the General Assembly was to protect minors from harmful material and interactions online, there is no evidence that Act 689 will be effective in achieving that goal." He added, "Act 689 impedes access to a vast amount of content instead of targeting content that is harmful to minors."

Furthermore, the judge noted that the law "fails to clearly define which NetChoice members are subject to regulation, leaving some companies to either risk violating the law or implement age verification requirements that infringe on their users’ First Amendment rights." Judge Brooks emphasized that even NetChoice members clearly targeted by Act 689 "will be forced to act as the State’s private censor," and "there is no legal recourse for Arkansans whose free speech rights are violated."

While the state argued that the law's language clearly regulates Meta, Twitter (now X), and TikTok, NetChoice countered that its members like Snapchat, Nextdoor, and Pinterest could not be certain that the law did not apply to them. In response, the state argued that Snapchat was not subject to the law because it is "different from traditional social media platforms." Additionally, YouTube and Google were explicitly exempted from the age verification requirements in the bill.

In his final remarks, Judge Brooks stated, "Act 689 is a content-based restriction on speech that is not narrowly tailored to address the harms the State has identified. Instead of a scalpel, as the Constitution requires, Arkansas has used a hatchet to cut off the protected speech of both adults and minors."

This ruling is expected to set an important precedent for future legislative efforts concerning similar laws that, despite aiming for the public interest of protecting minors, raise concerns about excessive personal data collection and infringement on freedom of expression.

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