Yesterday, TechFreedom filed an amicus brief urging the U.S. Court of Appeals for the Eighth Circuit to affirm a district court order blocking the Arkansas Social Media Safety Act. The Act requires social media companies to verify the age of every user who seeks to create an account, and it bars minors under 16 from creating an account without parental consent. TechFreedom’s brief explains why the Act is subject to strict scrutiny under the First Amendment, which it cannot meet.

“Arkansas’s social media law is censorship dressed up as child protection,” said Corbin K. Barthold, Director of Appellate Litigation at TechFreedom. “The statute singles out social media platforms, the most important forums for everyday people—and especially young people—to engage in speech and debate. Social-media content is appealing precisely because of what the vast community of social-media users have to say. Arkansas has a beef with the distinctive nature of peer-to-peer content. This is classic speaker- and content-based regulation of speech, which triggers strict scrutiny under the First Amendment.”

“Arkansas’s alarmism about the harms and perils of social media is overwrought,” Barthold continued. “Arkansas is partaking in the latest in a long line of tech-driven moral panics. As with past such panics, the rhetoric has run far ahead of the evidence. But even if social media were as risky as Arkansas suggests (that’s not what the data shows), Arkansas would still have to comply with the First Amendment. The Act does not do so.”

“In the end, Arkansas’s problem is with the power of speech itself,” Barthold concluded. “Minors spend time on social media because, when they’re there, they see speech they’re interested in seeing. This problem—if it’s really a problem—is not for Arkansas to fix. Under the First Amendment, the strong effects of speech are an inherent part of speech—not a ground for regulation. The Eighth Circuit should affirm the district court, and make clear that Arkansas cannot wall off its young people from civic debate.”

The case is NetChoice, LLC v. Griffin, No. 25-1889 (8th Cir.).

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TechFreedom is a nonprofit, nonpartisan technology policy think tank. We work to chart a path forward for policymakers towards a bright future where technology enhances freedom, and freedom enhances technology.

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