Arkansas Social Media Age-Check Law’s Demise Threatens Others

State efforts to limit minors’ access to social media with an age verification gate are likely to find the First Amendment a persistent obstacle, as Arkansas discovered after its law was struck down by a federal judge earlier this week.

An Arkansas-style approach “is not going to be fruitful,” said Ben Sperry, a scholar at the International Center for Law & Economics who writes about age verification policies.

There’s a chance Arkansas will appeal the ruling, but there “is a real question out there as the constitutionality of straight age verification legislation,” said Marc Berkman, CEO of the Organization for Social Media Safety.

The Arkansas law required certain social media companies to verify the ages of those in the state seeking to create an account and, if they’re minors, whether they had parental permission to do so.

Judge Timothy L. Brooks of the US District Court for the Western District of Arkansas permanently blocked the law March 31, finding it unconstitutional because it “impedes access to content writ large” rather than specifically targeting content harmful to children.

Other courts have blocked similar laws across the country with preliminary injunctions, but Brooks’s order is the first dealing in depth with a social media age verification law on its merits.

“Laws that restrict protected speech or expression are subject to heightened scrutiny” under the First Amendment, with content-based restrictions facing strict review, the judge wrote. Arkansas’ law required strict scrutiny because it regulated based on both content and speaker—and didn’t survive that level of review—Brooks ruled.

Awaiting Supreme Court

Sperry said courts have cited the US Supreme Court’s 2004 decision in Ashcroft v. ACLU—which asked “whether the challenged regulation is the least restrictive means among available, effective alternatives"—to reach the same conclusion in other cases relating to social media and obscene material online.

Ashcroft affirmed a preliminary injunction blocking a federal verification scheme that required an age certificate or financial account because it was was more restrictive than simply filtering out pornography.

Sperry also noted it will be interesting to see how the high court rules in a pending adult entertainment industry challenge to a Texas law that requires age gates for sites with significant amounts of pornography.

During oral arguments in Free Speech Coalition v. Paxton, the justices seemed to say that states should be able to keep kids from viewing online pornography, but expressed concern that an age verification gate for adult sites could still run afoul of the First Amendment.

“I think what’s more likely is they’ll just distinguish it,” Sperry said. Age verification may be the least restrictive method to prevent children from seeing adult content, but “I think the Supreme Court wouldn’t go so far as to say that accessing lawful speech, which is mostly what’s on social media,” should be behind an age gate, he said.

Other Alternatives

“If age verification is potentially going to be unconstitutional, we continue to need a robust, comprehensive response,” Berkman said. “There is a long list of harms that millions of children throughout the country are being victimized by through social media.”

But there are disagreements over how to address those harms.

“Anything that is going to ban people from doing anything has never really worked out well at all,” said Uttara Ananthakrishnan, a Carnegie Mellon University professor who previously worked on Google’s Trust and Safety team. Tools that help parents monitor their children would work better than age gate rules, she said.

Chris Marchese, Litigation Director for NetChoice—the plaintiff in the Arkansas case—said the government could enforce laws like the PROTECT Our Children Act of 2008.

The law directed the Justice Department to update its anti-child exploitation strategy to address changing technology, but a December 2022 Government Accountability Office report found the agency hadn’t done so.

Marchese also said it’s good to promote digital literacy and inform parents about tools social media companies already provide.

Florida and Virginia, for example, have passed laws to create online safety curricula for students and direct parents to instructional material or assistance programs.

But Berkman said education-focused laws like these aren’t enough. “It’s absolutely not a sufficient intervention, and we see that on a regular basis,” he said.

Such laws force parents to make “a lose-lose trade off” between a child’s social life and their safety, and instead a public policy approach is necessary, he said.

“The question is who should be in charge of avoiding those harms,” Sperry said. Especially if “there’s tremendous benefits to using the internet as well.”

Friday, Eldredge & Clark LLP and Clement & Murphy PLLC represented NetChoice.

The case is NetChoice LLC v. Griffin, W.D. Ark., No. 5:23-cv-05105, 3/31/25.