Arkansas NetChoice case differs from U.S. Supreme Court case, but both involve First Amendment

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The U.S. Supreme Court on Monday paused two controversial social media laws from Texas and Florida, sending them back to lower courts for further review. One party in the case is also challenging an Arkansas social media law.

The Supreme Court case Moody vs. NetChoice LLC has been referred to as a significant First Amendment case because of the way it could affect online free speech.

The Texas and Florida laws in question “curtail the [ social media ] platforms’ capacity to engage in content moderation—to filter, prioritize, and label the varied third-party messages, videos, and other content their users wish to post,” according to the court opinion.

Arkansas social media age verification law struck down by federal court

This content control is a violation of the First Amendment, tech association group NetChoice challenged.

But the U.S. Supreme Court unanimously sent back the cases not based on First Amendment merits, but rather because the lower courts in the Eleventh and Fifth Circuits did not conduct a proper analysis of the challenges to the law, the opinion said.

“In sum, there is much work to do below on both these cases, given the facial nature of NetChoice’s challenges,” Justice Elena Kagan wrote in one of five opinions. “But that work must be done consistent with the First Amendment, which does not go on leave when social media are involved.”

In addition to the Texas and Florida laws, NetChoice also challenged an Arkansas law last June citing violations to the First Amendment.

Under Act 689 of 2023 , social media companies must use a third-party vendor to perform “reasonable age verification” before allowing access. If the person intending to use the site is younger than 18, they must obtain parental permission.

Gov. Sarah Huckabee Sanders prioritized the law based on concerns for protecting Arkansas’ children. She also has promised to hold “Big Tech” accountable. The largest social media platforms such as Facebook, Instagram, TikTok, X and Snapchat would fall under the purview of the law.

NetChoice asked a federal judge to prevent the law from taking place last fall and said, it “is the latest attempt in a long line of government efforts to restrict new forms of expression based on concerns that they harm minors.”

U.S. District Judge Timothy Brooks blocked the law hours before it would have been put in effect on Sept. 1. The law would have been the first to restrict social media access based on age and parental permission.

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