Report from the Arkansas Advocate
In Brief – A federal judge has blocked Arkansas from enforcing its 2023 law that requires teenagers under age 18 to have parental consent to create accounts on social media platforms such as Facebook, Instagram, TikTok, and Snapchat. District Judge Timothy Brooks said in his order that Act 689 violates the First Amendment because it is a “content-based restriction on speech that is not narrowly tailored to serve a compelling government interest,” as well as the due process rights of the social media companies. Arkansas was one of the first states to enact an age limit for social media platforms and its law had the earliest effective data. NetChoice, a trade association of large digital platforms, has sued to block each of the state social media regulation and age-limit laws, including Arkansas’ measure, consistently winning temporary injunctions, including from Judge Brooks in August of 2023. NetChoice applauded the latest decision by Brooks, their first permanent injunction. Although he noted that the state has a compelling interest to protect minors from harms caused by “unfettered social media access”, the judge criticized the law as overly broad, by erecting barriers to entire social media platforms, unconstitutionally vague, for failing to adequately define which entities are subject to its requirements, and engaging in content-based regulation by exempting specific platforms including YouTube and LinkedIn.
Context – “Protecting” teenagers from various online harms is a global phenomenon. In the US, federal judges have identified First Amendment problems with state laws and raised privacy concerns with online age verification regimes. The US Supreme Court heard oral arguments in January on a Texas-law requiring age checks for porn sites. Age-gating online activity outside the US is not constrained by the First Amendment. In Europe, it is a major feature of the UK Online Safety Act, the EU Digital Services Act, and France is requiring age checks for online porn. Many countries in Asia are actively considering online age limits, and Australia has set a firm minimum age of 16 for social media.