Coalition of states hammers NetChoice in defense of Arkansas’ Social Media Safety Act

A new challenge in the U.S. court system cuts to the bone on the question of age assurance laws for social media: how much credence should we give to the tech billionaires defending their platforms as beacons of free speech, when they know how bad they are for kids?

A coalition of 33 states and the District of Columbia has come out swinging in favor of Arkansas’ Social Media Safety Act. An amicus brief filed with the U.S. Court of Appeals for the Eighth Circuit outright accuses major social platforms of predatory business practices and “nothing-to-see-here approach” to regulation. “The reason for that deception is clear: Addicting children and destroying their mental health pays.”

The complaint also calls out a frequent visitor to these pages. “Platforms have enlisted their trade association, NetChoice, to fight all efforts to regulate their business practices and protect kids online,” says the brief. “According to NetChoice, the Constitution gives tech giants like Google and Meta a veto for any law that regulates their practices simply because their platforms host speech. The First Amendment, they say, grants platforms not just a right to speak but also a right to contract with children, exploit their developing brains with addictive design features, expose them to sexual predators, and drive them to self-harm and suicide – all while misleading the public about their products.”

The amici argue that the district court “erred in permanently enjoining Arkansas from enforcing the Social Media Safety Act” – which is to say, when it ruled in favor of NetChoice’s appeal. At the time, Judge Timothy Brooks called the legislation a hatchet job on protected speech. But the combined states (and D.C.) say the law is a “constitutionally valid response to predatory business practices by platforms.”

The last argument is new, and marks a turning point in the debate. The question to date has been, “are age assurance laws constitutionally valid when imposed on platforms assumed to provide a public benefit in the form of free speech.” It has now become, “are age assurance laws constitutionally valid when imposed on platforms that knowingly engineered a youth mental health crisis?” If the task at hand is not regulating legitimate businesses, but making criminal enterprises follow the law, it becomes much easier to do. The allegation could not be clearer, and the brief has stats to back it up: “social media companies are misleading the public and harming children.”

The brief also represents a concentrated pushback against litigatory steamrolling by NetChoice, and its weaponization of the First Amendment. In weighing concerns about harm with the constitutional gymnastics NetChoice has performed in service of Big Tech, it not only says NetChoice is wrong about Arkansas’ law – but declares that the matter is none of its darn business.

“NetChoice has no relationship whatsoever with its members’ users,” reads the brief. In asserting users’ rights, NetChoice asks this Court to bless what the Third Circuit has dubbed ‘derivative standing,’ where an association uses associational standing to satisfy Article III and then invokes third-party standing to assert the rights of nonmembers with whom only its members have a relationship.” Facebook can object to a law that impacts its users, whereas NetChoice is a pure lobbying machine for corporate interests, and knows nothing of the posting masses.

Article Topics

age verification  |  Arkansas  |  Arkansas’ Social Media Safety Act  |  legislation  |  Netchoice  |  social media