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Arkansas Social Media Safety Act Violates the First Amendment

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Arkansas Social Media Safety Act Violates the First Amendment

April 11, 2023

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Last week, Arkansas joined the national trend of attempting to kick social media platforms out of the state. The Legislature has passed the Social Media Safety Act, which adds age verification requirements for all new account holders in an effort to prevent cyberbullying and keep inappropriate material from children. But whatever the intention, the approach suffers from one glaring problem: it is unconstitutional.

The Act violates the First Amendment by requiring platforms to verify everyone’s identity. The law’s age verification requirements are very similar to those in the Child Online Protection Act (COPA), which the Supreme Court, nearly two decades ago, rejected as unconstitutional because other, less restrictive means for protecting minors existed.

The Act would require social media platforms to verify the age of every new user prior to authorizing the creation of accounts. It includes a strong preference for verification through photo identification and harsh penalties for any social media platform not fully complying with the law.

While well-intentioned, the Act leaves much to be desired. The definitions of social media companies and platforms leave out a few major platforms. The Act includes companies that “allow users to generate short video clips of dancing, voice overs, and other acts of entertainment” but excludes any company whose “primary purpose” is not “interacting socially with other profiles and accounts.” This means that it would cover TikTok but not YouTube, and Snapchat but not Rumble.

Governments may not interfere with citizens’ First Amendment rights. The right is near absolute for adults, though free speech protections for minors are a bit murkier. Arkansas legislators have crafted a solution that interferes with the First Amendment rights of all Arkansans by prohibiting social media companies from creating accounts without verifying a user’s age. Practically speaking, this age verification requirement means that all social media companies need to verify users’ identities, and that if a prospective user refuses to comply, the social media company will have no option but to deny access.

Mandated identity verification eliminates anonymous speech. The right to free speech includes the right to speak anonymously, with the decision whether to remain anonymous residing with the individual rather than the government. American history is replete with examples of anonymous speech, from Alexander Hamilton, James Madison, and John Jay writing The Federalist Papers as “Publius,” to Thomas Paine writing Common Sense anonymously, to Benjamin Franklin’s frequent use of pseudonyms.

The Supreme Court renewed its support for this tradition in 2021 when it recognized that the First Amendment protected the right of the Americans for Prosperity Foundation to protect the anonymity of its donors from the State of California. In his decision, Chief Justice Roberts noted that “laws directly burdening the right to associate anonymously … should be subject to the same scrutiny as laws directly burdening other First Amendment rights.”

Seeking to protect minors from harmful, online content is a delicate balancing test. A state is fully within its authority to regulate access to illegal content or content not suitable for minors. A state may not, though, enact a law that will restrict access to the internet, or condition the exercise of First Amendment rights, for the entire populace. Laws, then, must be tailored to prevent the state’s cited harms.

Age verification as a means of restricting minors’ access to harmful content is nothing new. In 1998, Congress enacted COPA to protect “the physical and psychological well-being of minors” from “harmful materials.” The American Civil Liberties Union challenged the law, and in 2004, the Supreme Court sided with them. In the decision, the Court recognized Congress’s noble intentions, but found that laws requiring age verification to access internet-based speech are "content-based restrictions" requiring the most stringent analysis.

Age verification requirements likely are not the least restrictive means of protecting minors. As noted by the Supreme Court, as long as internet content filters exist, they “impose selective restrictions on speech at the receiving end, not universal restrictions at the source. Under a filtering regime, adults without children may gain access to speech they have a right to see without having to identify themselves.”

States and parents should seek to protect children from harmful, online content. The answer, though, is not age verification requirements but other, less restrictive means and ensuring that parents understand the tools available to protect their children. Unfortunately, in their zeal to protect children, the Arkansas legislature sent Governor Sanders a constitutionally defective proposal. The Governor should veto it.

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