Many people believe that excessive social media use can undermine the physical and mental wellbeing of children. To address these concerns, some states are implementing or considering restrictions on social media use by minors. These often take the form of laws requiring parental consent for children to open social media accounts.
One of these states is Arkansas, which passed the Social Media Safety Act this year. The law was intended to take effect on September 1. It requires social media companies to verify the age of account holders who live in Arkansas by using third parties to review age-verifying documentation. An adult whose age is verified may open a social media account. However, a child will not be allowed to open an account unless a parent specifically provides their consent. This also will require proof of the age and identity of the parent, as well as their relationship to the child.
NetGroup, a trade association in the tech industry, challenged the implementation of the Social Media Safety Act. (Members of NetChoice include Facebook, Instagram, TikTok, Snapchat, Pinterest, and the company formerly known as Twitter.) Although it acknowledged that excessive social media use poses risks to minors, NetChoice argued that the Arkansas law was unconstitutional. Among other things, it claimed that the Social Media Safety Act violated the First Amendment because it placed an undue burden on the access of both adults and children to constitutionally protected speech, and it did not narrowly tailor the age verification provisions to address the risks to children on social media.
NetGroup asked the judge for an order called a “preliminary injunction.” A judge must weigh four factors when deciding whether to issue a preliminary injunction, but the most important factor is the likelihood that the party seeking the preliminary injunction will eventually succeed on the merits. A likely violation of First Amendment rights generally will justify a preliminary injunction. When the judge in this case found that NetChoice was likely to succeed on the merits, therefore, he issued this order. This blocks the enforcement of the Social Media Safety Act until the litigation concludes.
The decision by this Arkansas judge is not binding on other federal courts. However, states may want to take it into account in drafting laws on this issue so that they can reduce the risk of constitutional challenges.
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