States’ attempts to age-gate the Internet blocked by constitutional hurdles

States’ attempts to age-gate the Internet blocked by constitutional hurdles

Courts have started blocking some US states’ earliest attempts to age-gate the Internet. Yesterday, courts ordered preliminary injunctions blocking a Texas law requiring ID to access websites featuring adult entertainment, as well as an Arkansas law requiring ID to access some social media platforms. Both laws otherwise would’ve taken effect today.

While the Texas law was more narrowly aimed at restricting minors from accessing specific content that’s not age-appropriate, Arkansas’ law—the Social Media Safety Act—was much broader, stopping minors from creating accounts without parental permission on social media platforms that generate more than $100 million annually. It was also, according to the court, poorly researched, vaguely defined, and likely unconstitutional.

Bizarrely, Arkansas’ Social Media Safety Act would apply to some obvious platforms, like Facebook or TikTok, but not to other more popular platforms for kids, like YouTube. Netchoice, a trade group representing platforms likely impacted by the law—including Facebook, Instagram, Twitter, TikTok, Snapchat, Pinterest, and Nextdoor—sued to block the law, partly because the law was too vague. Some platforms, like Snapchat, weren’t even sure if the law applied to them, Netchoice argued.

Ultimately, US district judge Timothy Brooks granted the preliminary injunction to temporarily stop Arkansas Attorney General Tim Griffin from enforcing the law—finding that it was unconstitutionally vague and perhaps violating the First Amendment by restricting access to speech. In his opinion, Brooks wrote that the state itself wasn’t even sure if the law applied to Snapchat.

That ambiguity poses a problem for platforms since they could face a $2,500 fine for each violation, and compliance costs were equally steep. Nextdoor, which must comply with the law, told the court that compliance would raise its costs by up to 3,000 percent.

Confusion arose when the state’s witness, Tony Allen—an expert in age-verification standards for the United Kingdom who worked on the UK’s Online Safety Bill—testified that the Social Media Safety Act applied to Snapchat, then the state’s attorney later contradicted Allen. Neither could agree on Snapchat’s primary purpose. Was the app primarily for “interacting socially with other profiles and accounts”—as a covered social media platform under the law—or was it primarily for direct-messaging, which the law exempts? Nobody knew for sure.

Partly because of this exchange, Brooks ruled that Arkansas’ law “is unconstitutionally vague because it fails to adequately define which entities are subject to its requirements.” And because the law could potentially deter free speech, Brooks wrote that the court’s duty to block enforcement was greater because it “is critical ‘to ensure that ambiguity does not chill protected speech.’”

Arkansas’ AG Griffin’s statement said that he was “disappointed” in the ruling and planned to “continue to vigorously defend the law and protect our children.”

Netchoice has argued that parental consent laws like Arkansas’ law—which some states like Georgia are currently weighing and other states like Texas and Utah have already passed—unconstitutionally burden Internet users’ First Amendment rights. These laws require all Internet users to provide identifying information to access platforms—either by uploading official government documents or submitting to biometric scans—which would likely discourage many users who value their privacy from using sites.

“The Court agrees,” Brooks wrote. “It is likely that many adults who otherwise would be interested in becoming account holders on regulated social media platforms will be deterred—and their speech chilled—as a result of the age-verification requirements.” It also follows, Brook wrote, that the law would “obviously burdens minors’ First Amendment rights.”

The preliminary injunction will stop Arkansas from enforcing the law until the case is litigated. Based on Brooks’ opinion, Arkansas will likely struggle to defeat claims of unconstitutionality, as Brooks wrote that, as currently written, the law “is not targeted to address the harms it has identified, and further research is necessary before the State may begin to construct a regulation that is narrowly tailored to address the harms that minors face due to prolonged use of certain social media.”

“We’re pleased the court sided with the First Amendment and stopped Arkansas’ unconstitutional law from censoring free speech online and undermining the privacy of Arkansans, their families, and their businesses as our case proceeds,” Chris Marchese, director of the NetChoice Litigation Center, said in a statement. “We look forward to seeing the law struck down permanently.”

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