NetChoice v. Griffin et al

1
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
NETCHOICE 	PLAINTIFF
V. 	CASE NO. 5:25-CV-5140
TIM GRIFFIN, in his Official Capacity
as Attorney General of Arkansas et al. 	DEFENDANTS
MEMORANDUM OPINION AND ORDER
NetChoice, an Internet trade association, asks the Court to preliminarily enjoin
Defendants from enforcing Arkansas Act 900 of 2025, which is set to go into effect April
21, 2026. NetChoice argues that Act 900 violates the First Amendment and is void for
vagueness. For the reasons that follow, NetChoice’s Motion for Preliminary Injunction
(Doc. 51) is GRANTED.
I. BACKGROUND
In 2023, Arkansas enacted Act 689 of 2023, the Social Media Safety Act. Act 689
required certain social media platforms to verify the age of account holders in Arkansas
and required parental consent for account creation by those under 18 years of age. This
Court permanently enjoined enforcement of Act 689 on First Amendment and due process
vagueness grounds. NetChoice, LLC v. Griffin, 2025 WL 978607 (W.D. Ark. March 31,
2025).
The Court previously concluded that Act 689’s definitions of “social media platform”
and “social media company” were content based, so the Act’s operative provisions were
subject to strict scrutiny, which they did not survive. Id. at *7–14. 	The Court also
concluded Act 689 was void for vagueness because it failed to adequately define which
online services it regulated. Id. at *14–17. The Court therefore permanently enjoined
Case 5:25-cv-05140-TLB Document 69 Filed 04/20/26 Page 1 of 24 PageID #:
<pageID>

2
enforcement of Act 689. Id. The State’s appeal of the Court’s permanent injunction is
pending before the Eighth Circuit. NetChoice, LLC v. Griffin, Case No. 25-1889 (8th Cir.).
The law at issue here, Act 900 of 2025, modifies and supplements Act 689. The
General Assembly has enacted a new definition of “social media platform” that avoids
many of the content-based pitfalls of the previous definition. Act 900 imposes new
restrictions on platforms and was enacted alongside Act 901 of 2025 which prohibits
platforms from using any “design, algorithm, or feature” that causes certain undesirable
outcomes. NetChoice also challenges Act 901 in this case, and on December 15, 2025
the Court preliminarily enjoined its enforcement. NetChoice v. Griffin, 812 F. Supp. 3d 905
(W.D. Ark. 2025). The State has taken an interlocutory appeal of that preliminary
injunction. NetChoice v. Griffin, Case No. 26-1096 (8th Cir.).
NetChoice now asks the Court to preliminarily enjoin enforcement of Act 900. The
challenged provisions of Act 900 apply to a “social media platform,” which the Act defines
as “a business entity or organization that operates an online platform, application, or
service that:
(i) 	Is designed to facilitate user-to-user, user-to-group, or user-to-public
interaction, expression, or communication;
(ii) 	Assigns, utilizes, or relies on a unique identifier, username, profile
name, or image that is associated with a specific user account;
(iii) 	Provides mechanisms for a user to create an online profile comprised
of personally identifiable information or professional information,
including without limitation a user's name, username, address, date
of 	birth, 	educational 	pedigree, 	professional 	details, 	interests,
activities, or connections;
(iv) 	Employs features that allow a user to connect, follow, or establish a
relationship with other users and creates a network of interactions
either in real time or asynchronously, including without limitation
virtual likes and dislikes;
Case 5:25-cv-05140-TLB Document 69 Filed 04/20/26 Page 2 of 24 PageID #:
<pageID>

3
(v) 	Generates revenue primarily through user engagement, including
without limitation through advertising, user data monetization, or
premium content; and
(vi) 	Is accessed by Arkansas users.
Act 900, sec. 1, § 4-88-1401(11)(A).
Act 900 also lowers the applicable age of majority from 18 to 16. Id. § 1401(9)
(“‘Minor’ means an individual under sixteen (16) years of age who is in the State of
Arkansas.”). Act 900’s newly enacted § 1402(d) imposes obligations on platforms beyond
the age-verification and parental-consent requirements of Act 689. Section 1402(d)
prohibits platforms from engaging in “addictive” practices, requires certain default settings
for minors, and directs platforms to create an online dashboard for parental supervision.
Addictive practices provision:
A 	social 	media 	platform 	shall 	. 	. 	. 	[c]onsistent 	with 	contemporary
understanding 	of 	addiction, 	compulsory 	behavior, 	and 	child 	cognitive
development, ensure that the social media platform does not engage in
practices to evoke any addiction or compulsive behaviors in an Arkansas
user who is a minor, including without limitation through notifications,
recommended content, artificial sense of accomplishment, or engagement
with online bots that appear human.
Act 900, sec. 2, § 4-88-1402(d)(1). To aid compliance with this provision, a social media
platform shall also “[c]onduct an audit at least one (1) time per quarter to ensure that the
social media platform's software, application, or other products are not causing minors to
engage in compulsory or addiction-driven behavior.” Id. § 1402(d)(3).
Default provisions: Act 900 also requires social media platforms to set certain
defaults for “an Arkansas user who is a minor”: (1) Notifications, “other than safety or
privacy-related alerts” must be “ceased between the hours of 10:00 p.m. central standard
time (CST) and 6:00 a.m. central standard time,” although a parent or guardian is allowed
Case 5:25-cv-05140-TLB Document 69 Filed 04/20/26 Page 3 of 24 PageID #:
<pageID>

4
“to modify this setting”; and (2) “Privacy and safety settings” must “provide[ ] the most
protective level of control for privacy and safety offered” by the platform. Id. § 1402(d)(2).
Dashboard provision: Finally, Act 900 requires platforms to “[d]evelop an easily
accessible online dashboard to allow a parent of a minor user to view and understand his
or her child’s use habits” and to include on this dashboard “tools for a parent to restrict
his or her minor child’s access” to the platform or “logical portions” of it. Id. § 1402(d)(4).
Act 900 has one particularly noteworthy problem: “users.” Act 900 has three
different definitions for relationships a person can have with a platform. First, an “account
holder” is “an individual who primarily uses, manages, or otherwise controls an account
or a profile to use a social media platform.” Id. sec. 1, § 4-88-1401(1). “Account holder” is
not used in any of the Act’s operative provisions. Second, a “user” is “a person who has
access to view all or some of the posts and content on a social media platform but is not
an account holder.” Id. § 1401(12). Third, an “Arkansas user” is “an individual who is a
resident of the State of Arkansas and who accesses or attempts to access a social media
platform while present in this state.” Id. § 1401(2). “Arkansas users” include both “account
holders” and “users,” but “users” are definitionally not “account holders.” The addictive
practices provision and the default provisions therefore apply to all Arkansas minors,
whether they have a social media account or are merely a website visitor. Worse, the
dashboard provision applies only to minor “users,” not account holders.
The State’s prosecuting attorneys and the Attorney General can bring enforcement
actions against platforms that violate § 1402. Ark. Code. Ann. § 4-88-1403(b). “A violation
of this subchapter is a strict liability civil offense.” Id. § 1403(b)(2)(C). And liability under
§ 1403 for a violation of § 1402 “does not [a]pply to a news or public interest broadcast,
Case 5:25-cv-05140-TLB Document 69 Filed 04/20/26 Page 4 of 24 PageID #:
<pageID>

5
website video, report, or event.” Id. § 1403(d)(1). Act 900 increases the statutory penalty
for violations from $2,500 per violation to $10,000 per violation and specifies that “[e]ach
day that a covered social media platform permits a minor to access the covered social
media platform in violation of this section constitutes a separate violation.” Act 900, sec.
4, § 4-88-1403(c).
Defendants say social media platforms exploit children for monetary gain. (Doc.
56, p. 2). And while NetChoice’s members do not agree with that assessment, it would
be hard to deny the potential for problems associated with children’s usage of social
media in general. 	As whistleblower reporting has made known, companies like Meta
know that young people want to spend less time online but “lack the willpower to control
the time spent themselves.” Teen Mental Health Deep Dive, Wall St. J. (Sept. 29, 2021)
(Doc. 57-1, p. 54).1 Rather than provide minors with tools to control their social media
use, platforms are designed to maximize “engagement,” or time spent online. Children
and teens are especially susceptible to these designs: they are hypersensitive to social
feedback, do not have a fully developed impulse-control system, and are more distractible
than adults. Potential Risks of Content, Features, and Functions: The Science of How
Social Media Affects Youth, Am. Psych. Ass’n (Apr. 2024) (Doc. 37-12).2
Too much time on social media has adverse effects on young people. It “displaces
real world activities including sleep, physical activity, and real-world interactions.” (Doc.
1 https://s.wsj.net/public/resources/documents/teen-mental-health-deep-dive.pdf
[https://perma.cc/448B-LHYW].
2 https://www.apa.org/topics/social-media-internet/youth-social-media-2024
[https://perma.cc/A7GV-QRTL].
Case 5:25-cv-05140-TLB Document 69 Filed 04/20/26 Page 5 of 24 PageID #:
<pageID>

6
57-8, ¶ 24 (Kaliebe Dec.)).3 “[M]ore time online is associated with lower child and teen
wellbeing such as poorer sleep, more sedentary behaviors, more parent-child relationship
difficulties, and more behavior problems.” (Doc. 57-10, ¶ 55 (Radesky Dec.)).4 The
negative effects of social media use on sleep quality and duration are especially
concerning for minors because sufficient sleep “is crucial to child health to support
neurological development, bone growth, and [a] regulated endocrine system.” Id. ¶ 37;
see Jessica C. Levenson et al., The Association Between Social Media Use and Sleep
Disturbance Among Young Adults, 85 Preventive Med. 36 (2016) (Doc. 57-14).
Minors on social media face risks not just from the platforms themselves, but also
from other people online. Children are vulnerable to online sexual exploitation. According
to one source: Over 300 Million Children a Year Are Victims of Technology-Facilitated
Sexual Exploitation and Abuse, Childlight (Dec. 4, 2024) (Doc. 57-18).5 “[S]ocial media
can 	be 	a 	component 	or 	the 	primary 	mechanism 	of 	contact 	or 	exploitation,” 	and
perpetrators 	“can 	scour 	the 	young 	people’s 	social 	media 	for 	data 	that 	signals
3 Dr. Kristopher Kaliebe is a professor and supervising physician at the University of South
Florida. He is board certified in child and adolescent and forensic psychiatry. He was
retained by the Attorney General of Georgia to provide an expert opinion on the effects of
social media on young people in litigation concerning Georgia’s age-verification law. Id. ¶
1–10.
4 Dr. Jenny Radesky is a professor of pediatrics at the University of Michigan Medical
School. She is board certified in developmental behavioral pediatrics and serves as
Director of the Division of Developmental Behavioral Pediatrics. She was retained by the
Attorney General of California to provide an expert opinion on California’s Protect Our
Kids from Social Media Addiction Act. Id. ¶ 2–3, 24.
5 https://www.childlight.org/newsroom/over-300-million-children-a-year-are-victims-of-
online-sexual-exploitation-and-abuse [https://perma.cc/J2B8-HBCF].
Case 5:25-cv-05140-TLB Document 69 Filed 04/20/26 Page 6 of 24 PageID #:
<pageID>

7
vulnerabilities to exploitation, and can create false online accounts to shield their true
identity.” (Doc. 57-8, ¶¶ 94, 101 (Kaliebe Dec.)).
NetChoice says its member platforms work hard to protect minors on their
platforms. Meta, for example, now offers Instagram Teen Accounts. Instagram account
holders who self-identify as teens are automatically placed into Teen Accounts, which
include 	restrictions 	like 	“default 	private 	accounts”; 	“Meta’s 	strictest 	messaging
restrictions”; various content restrictions directed at sensitive topics like suicide, offensive
words associated with bullying, and nudity; “time limit reminders”;6 and “sleep mode,
which mutes notifications overnight.” (Doc. 52-2, ¶ 35 (Murphy Dec.)).7 “Teens under 16
need a parent’s permission to change any of these settings to be less strict.” Id. ¶ 36.
Meta uses similar restrictions for Teen Accounts on Facebook. Id. ¶ 41. Meta also offers
parental control and supervision tools for Teen Accounts, which allow parents to, among
other things, set time limits, see how long their teen has spent on the platform over the
last week, and modify their teen’s content settings. Id. ¶ 43.
But some platforms, NetChoice says, pose few risks to minors and are nonetheless
subject to the Act’s restrictions. Nextdoor, for example, is designed to let people connect
with others in their neighborhood. Nextdoor “require[s] individuals to register with and use
their real names and addresses on the platform.” (Doc. 52-3, ¶ 6 (Baird Dec.)).8 “Nextdoor
6 Defendants’ evidence indicates that time limit reminders have “no effect on reducing
smartphone screentime or checking behavior.” (Doc. 57-10, ¶ 49 n.119 (Alter Dec.)).
Adam Alter holds a Ph.D. in social and cognitive psychology and is a professor of
marketing and psychology at New York University. Id. ¶ 1. He was retained by the Attorney
General of Florida to provide an expert opinion on the addictiveness of social media
generally and of certain features in particular. Id. ¶ 9.
7 Elizabeth Murphy is Meta’s Head of Youth Policy, Safety Policy Team. Id. ¶ 1.
8 David Baird is Nextdoor’s Lead of Support Operations. Id. ¶ 2.
Case 5:25-cv-05140-TLB Document 69 Filed 04/20/26 Page 7 of 24 PageID #:
<pageID>

8
estimates that approximately 99% of its users are legal adults. Further, only approximately
1% of its users are between the ages of 13 and 17, and less than 10% are under 25 years
of age.” Id. ¶ 16. Nextdoor says complying with Act 900 would be prohibitively expensive,
so, given the small number of minors on its platform, it “would be forced to completely
stop allowing minors under the age of 16 to access its website in Arkansas, as it was
forced to do when similar laws in Texas, Mississippi, and Tennessee went into effect
regarding those under the age of 18.” Id. ¶¶ 28, 37.
II. LEGAL STANDARD
In determining whether to grant a motion for preliminary injunction, the Court must
weigh the following four considerations: (1) the threat of irreparable harm to the moving
party; (2) the movant's likelihood of success on the merits; (3) the balance between the
harm to the movant if the injunction is denied and the harm to other party if the injunction
is granted; and (4) the public interest. Dataphase Sys., Inc. v. CL Sys., Inc., 640 F.2d 109,
114 (8th Cir. 1981). When a plaintiff seeks to “enjoin the implementation of a duly enacted
state statute,” they must meet a more rigorous standard on the second prong by showing
that they are “likely to prevail on the merits.” Planned Parenthood Minn., N.D., S.D. v. 8
Rounds, 530 F.3d 724, 732–33 (8th Cir. 2008) (en banc). “While no single factor is
determinative, the probability of success factor is the most significant.” Kodiak Oil & Gas
(USA) Inc. v. Burr, 932 F.3d 1125, 1133 (8th Cir. 2019) (citation and quotation omitted). In
particular, “[w]hen a Plaintiff has shown a likely violation of his or her First Amendment
rights, the other requirements for obtaining a preliminary injunction are generally deemed
to have been satisfied.” Phelps-Roper v. Troutman, 662 F.3d 485, 488 (8th Cir. 2011) (per
curiam), vacated on reh’g on other grounds, 705 F.3d 845 (8th Cir. 2012).
Case 5:25-cv-05140-TLB Document 69 Filed 04/20/26 Page 8 of 24 PageID #:
<pageID>

9
III. DISCUSSION
A. Standing
Defendants argue that NetChoice lacks associational standing to assert claims on
behalf of its members and lacks third-party standing to assert claims on behalf of its
members’ users. Defendants previously raised these same arguments in the Act 689
litigation, and the Court concluded that NetChoice had both associational standing to sue
on behalf of its members and third-party standing to assert the rights of its members’
users. NetChoice, LLC v. Griffin, 2023 WL 5660155, at *9–12 (W.D. Ark. Aug. 31, 2023).
When asked why the Court should depart from its previous conclusion, Defendants’
counsel offered no justification. The Court therefore concludes, as before, that NetChoice
has associational standing to bring its facial challenge to Act 900, and third-party standing
to assert First Amendment claims on behalf of its members’ users. The Court will briefly
restate the reasons for this conclusion. For a more fulsome discussion, see id.
To establish associational standing, an association must show: (1) its members
would have standing to sue in their own right; (2) the suit seeks to protect interests
germane to the association’s purpose; and (3) neither the claim asserted nor the relief
requested requires the individual members of the association to participate in the lawsuit.
See Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 343 (1977). Defendants
challenge only the third requirement, arguing that individual member participation is
required for the Court to resolve the First Amendment challenge because the First
Amendment implications of the Act will vary from platform to platform and by function
within each platform. See Moody v. NetChoice, LLC, 603 U.S. 707, 725–26 (“Curating a
feed and transmitting direct messages, one might think, involve different levels of editorial
choice, so that the one creates an expressive product and the other does not. If so,
Case 5:25-cv-05140-TLB Document 69 Filed 04/20/26 Page 9 of 24 PageID #:
<pageID>

10
regulation of those diverse activities could well fall on different sides of the constitutional
line.”).
But under the facial challenge standard as articulated in Moody, the Court must
consider “the full range of activities the law[ ] cover[s].” Id. at 724. Thus, regardless of
whether NetChoice or an individual platform is the plaintiff, the Court must consider the
law’s 	applications 	to 	parties 	not 	before 	the 	Court. 	Requiring 	members 	to 	litigate
individually would be more likely to hinder, rather than aid, the Court’s resolution of
NetChoice’s facial challenge. The requirements for associational standing are met.
Defendants also argue that NetChoice cannot assert First Amendment claims on
behalf of its members’ users or account holders. As an initial matter, NetChoice’s claims
do not rely solely on the First Amendment rights of social media users—platforms also
disseminate their own speech and engage in protected editorial discretion online, see id.
at 731, and NetChoice contends that Act 900 restricts their ability to do so.
To the extent that NetChoice does assert the rights of platforms’ users, litigants are
normally barred “from asserting the rights or legal interests of others in order to obtain
relief from injury to themselves.” Warth v. Seldin, 422 U.S. 490, 509 (1975). However, this
rule has exceptions. Craig v. Boren provides a prototypical example. 429 U.S. 190 (1976).
There, a licensed vendor of beer and her underage male customer challenged the
constitutionality of gender-based distinctions in Oklahoma’s liquor laws. Id. at 192. During
the pendency of the lawsuit, the customer, Craig, attained the age of majority, so his claim
became moot. Id. Nevertheless, the Supreme Court held that the vendor had standing to
assert constitutional equal protection claims on behalf of Craig and other underage male
customers. Id. at 196. Here, platforms have an analogous relationship with their users,
Case 5:25-cv-05140-TLB Document 69 Filed 04/20/26 Page 10 of 24 PageID #:
<pageID>

11
and an age-based restriction similarly threatens mootness should minor users seek to
bring claims in their own behalf. NetChoice has third-party standing to assert the First
Amendment rights of its members’ users.
B. Likelihood of Success on the Merits
NetChoice 	asserts 	both 	First Amendment 	and 	Fourteenth Amendment 	due
process challenges to the operative provisions of Act 900.
“The First Amendment generally prevents government from proscribing speech, or
even expressive conduct, because of disapproval of the ideas expressed.” R.A.V. v. City
of St. Paul, 505 U.S. 377, 382 (1992) (citations omitted). “‘Content-based laws . . . are
presumptively unconstitutional and may be justified only if’ they satisfy strict scrutiny. That
standard requires that a law be ‘the least restrictive means of achieving a compelling state
interest.’” Free Speech Coal., Inc. v. Paxton, 606 U.S. 461, 471 (2025) (first quoting Reed
v. Town of Gilbert, 576 U.S. 155, 163 (2015); and then quoting McCullen v. Coakley, 573
U.S. 464, 478 (2014)). Laws “[m]andating speech that a speaker would not otherwise
make necessarily alter[ ] the content of the speech” and are therefore treated as content
based. Riley v. Nat’l Fed’n of the Blind of N. Carolina, Inc., 487 U.S. 781, 795 (1988).
Speaker-based laws are also subject to strict scrutiny “when the legislature's speaker
preference reflects a content preference.” Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622,
658 (1994).
By contrast, content-neutral laws that regulate or have incidental effects on speech
are subject to a less searching “intermediate” scrutiny, which they survive “if [they]
advance[ ] important governmental interests unrelated to the suppression of free speech
and do[ ] not burden substantially more speech than necessary to further those interests.”
Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 189 (1997). And “[e]xpression, whether
Case 5:25-cv-05140-TLB Document 69 Filed 04/20/26 Page 11 of 24 PageID #:
<pageID>

12
oral or written or symbolized by conduct, is subject to reasonable time, place, or manner
restrictions.” Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984).
“[R]estrictions of this kind are valid provided that they are justified without reference to the
content of the regulated speech, that they are narrowly tailored to serve a significant
governmental 	interest, 	and 	that 	they 	leave 	open 	ample 	alternative 	channels 	for
communication of the information.” Id. Finally, while compelled speech is generally
subject to strict scrutiny, certain mandated disclosures related to commercial speech are
constitutional as long as they “are reasonably related to the State’s interest in preventing
deception of consumers.” Zauderer v. Off. of Disciplinary Couns. of Supreme Ct. of Ohio,
471 U.S. 626, 651 (1985).
The Fourteenth Amendment’s Due Process Clause requires that state enactments
“clearly define[ ]” what is prohibited. Grayned v. City of Rockford, 408 U.S. 104, 108
(1972). Laws that fail to do so are “void for vagueness.” Id. Laws must therefore “give the
person of ordinary intelligence a reasonable opportunity to know what is prohibited, so
that he may act accordingly” and “provide explicit standards for those who apply them” so
that “arbitrary and discriminatory enforcement” may be prevented. Id. at 108–09.
“The degree of vagueness that the Constitution tolerates—as well as the relative
importance of fair notice and fair enforcement—depends in part on the nature of the
enactment.” Vill. of Hoffman Ests. v. Flipside, Hoffman Ests., Inc., 455 U.S. 489, 498
(1982). “[P]erhaps the most important factor affecting the clarity that the Constitution
demands of a law is whether it threatens to inhibit the exercise of constitutionally protected
rights. If, for example, the law interferes with the right of free speech or of association, a
more stringent vagueness test should apply.” Id. at 499.
Case 5:25-cv-05140-TLB Document 69 Filed 04/20/26 Page 12 of 24 PageID #:
<pageID>

13
NetChoice argues that the new definition of “social media platform” is content and
speaker based, so all the Act’s operative provisions are subject to strict scrutiny under the
First Amendment. While the Court agrees that the new definition is speaker based, Act
900’s definition avoids many of the obviously content-based pitfalls of the prior definition
and presents a more difficult question. Because resolving that question is not necessary
for the Court to find that NetChoice is likely to succeed on the merits, the Court declines
to consider it at this time. NetChoice has shown that it is likely to succeed on its
vagueness challenge to the addictive practices provision and that it is likely to succeed
on its First Amendment challenges to the other provisions even under intermediate
scrutiny.
1. Addictive Practices Provision
The addictive practices provision of Act 900 requires platforms to “ensure” that they
“do[ ] not engage in practices to evoke any addiction or compulsive behaviors in an
Arkansas 	user 	who 	is 	a 	minor, 	including 	without 	limitation 	through 	notifications,
recommended content, artificial sense of accomplishment, or engagement with online
bots that appear human.” Act 900, sec. 2, § 4-88-1402(d)(1). NetChoice asserts that this
provision 	is 	vague 	because 	it 	fails 	to 	specify 	what 	“practices” 	are 	prohibited. 	In
preliminarily enjoining Act 901, the Court concluded that its prohibition on any “design,
algorithm, or feature” that the platforms “knows, or should have known through the
exercise of reasonable care, causes a user to . . . [d]evelop or sustain an addiction to the
social media platform” 	was likely void for vagueness. Like that provision, this provision
“fails to specify a standard of conduct to which platforms must conform[,] and its violation
entirely depends upon the sensitivities of some unspecified user.” NetChoice v. Griffin,
812 F.Supp.3d at 928.
Case 5:25-cv-05140-TLB Document 69 Filed 04/20/26 Page 13 of 24 PageID #:
<pageID>

14
But liability under Act 900 is even more uncertain than under Act 901 in two
respects. First, Act 900 is not limited to addiction to the platform itself. Compare Act 900,
sec. 3, § 4-88-1402(d)(1) (“to evoke any addiction or compulsive behaviors in an Arkansas
user who is a minor” (emphasis added)) with Act 901, § 4-88-1502(a)(4) (“causes a user
to . . . [d]evelop or sustain an addiction to the social media platform” (emphasis added)).
A platform may thus be liable if its practices “evoke” “addiction” to even off-platform
activities.9
Second, Act 900 imposes liability on a strict liability basis, while Act 901 imposes
liability on a negligence basis. Compare Act 900, sec. 3, § 4-88-1403(b)(2)(C) (“A violation
of this subchapter is a strict liability civil offense.”) with Act 901, § 4-88-1502(a) (“A social
media platform shall not use a design, algorithm, or feature that the social media platform
knows, or should have known through the exercise of reasonable care, causes a user to
. . . .”). Instead of defending the statute the General Assembly enacted, Defendants ask
the Court to rewrite it by ignoring the strict liability provision altogether and inserting a
specific intent requirement that appears nowhere in the text. The Court cannot do so.
“[T]he prohibition’s use of the singular ‘[Arkansas user]’ . . . suggests that it is
actionable based on a single child’s response to an online interface, meaning that a
business designing a product accessed by millions of child users could face liability
whenever any one of them experiences” addiction or compulsive behavior. NetChoice,
LLC v. Bonta, 2026 WL 694471, at *16 (9th Cir. Mar. 12, 2026). Not only does Act 900
9 Defendants resist this interpretation, but Act 900 and Act 901 were enacted in the same
legislative session, and “[w]ithout evidence of a drafting omission, this court will not read
into legislation what is not there.” Cave City Nursing Home, Inc. v. Ark. Dep't of Hum.
Servs., 351 Ark. 13, 23 (2002).
Case 5:25-cv-05140-TLB Document 69 Filed 04/20/26 Page 14 of 24 PageID #:
<pageID>

15
impose liability based on a single child’s response to the platform, it does so on a strict
liability basis—a platform is liable for a practice the evokes addiction in a single child even
if it could not have known through the exercise of reasonable care that the practice would
have such an effect. “Businesses of ordinary intelligence cannot reliably determine what
compliance requires.” Id.
The related audit requirement, which directs platforms to conduct quarterly audits
“to ensure that the social media platform’s software, application, or other products are not
causing minors to engage in compulsory or addiction-driven behavior,” is similarly
defective. Act 900, sec. 2, § 4–88–1402(d)(3). This requirement is even more expansive
with respect to what platforms must audit for—not just full-fledged “addiction,” but
“addiction-driven behavior” caused by the platform—again, whether that behavior is on-
or off-platform. The addictive practices provision is likely void for vagueness.
2. Default Provisions
Under Act 900, social media platforms must also “[e]nsure that, by default:” (1)
“[n]otifications to an Arkansas user who is a minor, other than safety or privacy-related
alerts, are ceased between the hours of 10:00 p.m. central standard time (CST) and 6:00
a.m. central standard time (CST) and allow a parent or guardian to modify this setting”;
and (2) “[p]rivacy and safety settings for an Arkansas user who is a minor on a covered
social media platform provides the most protective level of control for privacy and safety
offered by the covered social media platform.” Id. § 1402(d)(2). The Court assumes that
the content-based exception to the notifications default for “safety or privacy-related
alerts” is severable, so strict scrutiny does not apply to the remainder.
“[T]he First Amendment does not guarantee the right to communicate one’s views
at all times and places or in any manner that may be desired.” Heffron v. Int’l Soc. for
Case 5:25-cv-05140-TLB Document 69 Filed 04/20/26 Page 15 of 24 PageID #:
<pageID>

16
Krishna Consciousness, Inc., 452 U.S. 640, 647 (1981). Under the test for time, place,
and manner restrictions, the Court agrees with Defendants that the notifications provision
is justified without reference to the content of the regulated speech and that it leaves open
ample alternative channels for communication. The Supreme Court has recognized that
the government has an interest in “the protection of the householders from annoyance,
including intrusion upon the hours of rest.” Martin v. City of Struthers, 319 U.S. 141, 144
(1943). The State has a significant interest in ensuring minors get enough sleep, and this
interest is unrelated to the suppression of free expression.
Here, the problems arise at the tailoring prong. Even reasonable time, place, and
manner restrictions must be “narrowly tailored to serve a significant governmental
interest.” Clark, 468 U.S. at 293. The notifications default applies to “Arkansas users”—
account holders and platform visitors alike. It seems to the Court that platforms would
therefore have to silence notifications between 10 p.m. and 6:00 a.m. for everyone in
Arkansas unless they have become an age-verified adult account holder.
In 	addition, 	the 	requirement 	of 	a 	parental 	override 	option 	in 	the 	nighttime
notification context makes this provision so underinclusive as to be functionally useless.
While Defendants justify the notification default as an aid to parental authority, they ignore
their own evidence that parents are part of the problem. If parents wanted to prevent their
children’s sleep from being disrupted by late-night notifications, they have a readily
available, free, no-tech solution already at their disposal: taking devices away at night.
Yet “86% of adolescents sleep with their phone in the bedroom.” Heather Cleland Woods
& Holly Scott, #Sleepyteens: Social Media Use in Adolescence is Associated with Poor
Sleep Quality, Anxiety, Depression and Low Self-Esteem, 51 J. Adolescence 41, 42
Case 5:25-cv-05140-TLB Document 69 Filed 04/20/26 Page 16 of 24 PageID #:
<pageID>

17
(2016) (Doc. 60). The State has provided no evidence that parents lack the tools to assert
their authority in this domain, so it appears unlikely that the State’s deferential approach
to restricting nighttime notifications will actually serve its stated interest in ensuring minors
get enough sleep.10 This “is not how one addresses a serious social problem.” Brown v.
Ent. Merchs. Ass'n, 564 U.S. 786, 802 (2011).
While, as Defendants argue, the burden imposed on users and account holders by
this provision is slight, that is exactly the problem—it burdens platforms’ speech by
silencing them for a third of the day without any indication that the burden will reduce
nighttime social media use or otherwise serve the State’s asserted interest at all.
The privacy default does not fit the mold of a time, place, and manner restriction,
but, like the notifications default, it implicates platforms’ speech. Safety and privacy
settings typically restrict who can see an account holder’s posts and whose posts an
account holder can see.11 Some platforms also incorporate restrictions on displaying
content they identify as sensitive or potentially harmful. And some platforms allow people
to protect their privacy from the platform itself, limiting the platform’s collection or use of
10 The General Assembly has already recognized the failure of deferential half-measures
in the context of school cell-phone use. See Bell to Bell, No Cell Act, 2025 Ark. Laws Act
122.
11 How this provision would apply to users, as opposed to account holders, is not entirely
clear to the Court. But it is clear from Defendants’ briefing that the State anticipates
application beyond account holders. (Doc. 59, p. 41 n.11 (“[P]arents cannot prevent their
children 	from 	creating 	or 	accessing 	social-media 	accounts 	given 	the 	ubiquity 	of
smartphones and other devices that they can access, including school computers and
friends’ devices . . . .”). Mere visitors to a platform cannot establish profiles and
relationship with other people online the way account holders can. Defendants’ evidence
(and the Court’s experience) indicate that this relational aspect is a critical tool for online
sexual predators, and it is absent from the website visitor experience. Accordingly, this
provision, as applied to “users,” is even less likely to advance the State’s asserted
interest.
Case 5:25-cv-05140-TLB Document 69 Filed 04/20/26 Page 17 of 24 PageID #:
<pageID>

18
their data. Defendants urge the Court not to decide NetChoice’s facial challenge because
“[t]here is no way to know the practical effect of this provision without the individual
participation of the platforms themselves.” (Doc. 56, p. 37). But while the particular mix of
settings varies by platform, the First Amendment implications do not change from platform
to platform within the general categories of settings laid out above.
While these types of settings may vary in their scope and effect, they all restrict
platforms’ ability to disseminate minors’ speech and to disseminate speech to minors and
therefore implicate the First Amendment. Sorrell v. IMS Health Inc., 564 U.S. 552, 570
(2011) (“[D]issemination of information [is] speech within the meaning of the First
Amendment.”). Assuming this restriction is content neutral, it is still subject to intermediate
scrutiny, 	which 	requires 	that 	the 	law 	be 	“narrowly 	tailored 	to 	serve 	a 	significant
governmental interest.” Packingham v. North Carolina, 582 U.S. 98, 106 (2017) (citation
omitted). To be narrowly tailored, “the law must not burden substantially more speech
than is necessary to further the government's legitimate interests.” Id.
Defendants assert that existing parental controls “are largely ineffective.” (Doc. 56,
p. 41). Controlling a child’s privacy and safety settings does present more of a challenge
to the tech-unsavvy parent than do nighttime notifications. But in contrast to the
notifications default, the privacy default says nothing about who can change these
settings, leaving the Court to conclude that, because the Act imposes a mere “default,”
anyone—parent or child—can opt for less restrictive settings. See Default, Merriam-
Webster.com (“a selection automatically used by a program in the absence of a choice
made by the user”); Default, Dictionary.Cambridge.com, (“the way that something
will happen or appear automatically, especially on a computer, if you do not make any
Case 5:25-cv-05140-TLB Document 69 Filed 04/20/26 Page 18 of 24 PageID #:
<pageID>

19
different choices”).12 As such, the privacy default can hardly be called a “parental” control
at all.
In addition to aiding parental authority, which this provision seems unlikely to do,
Defendants argue that the privacy default serves the State’s interest in protecting minors
from exploitation and abuse. The Court does not doubt the importance of this interest,
and the Court agrees that existing protections are insufficient and prophylactic measures
are much needed. “But the assertion of a valid governmental interest ‘cannot, in every
context, be insulated from all constitutional protections.’” Packingham, 582 U.S. at 106
(quoting Stanley v. Georgia, 394 U.S. 557, 563 (1969)).
“It is well established that, as a general rule, the government ‘may not suppress
lawful speech as the means to suppress unlawful speech.’” Id. at 109 (quoting Ashcroft,
535 U.S. at 255). That is precisely what this provision does. In Packingham, the Supreme
Court held unconstitutional a law “making it a felony for a registered sex offender to gain
access to a number of websites, including commonplace social media websites like
Facebook and Twitter.” Id. at 101. While not as broad as that law, Act 900 has a broad
definition of “social media platform” that sweeps in websites like Nextdoor and Pinterest
which are unlikely to be the site of sexual exploitation, burdening minors’ ability to speak
and be spoken to on those platforms and burdening platforms’ ability to disseminate
minors’ speech.
On the other hand, because the default can be changed by the minor, this provision
is also wildly underinclusive. Defendants say children need this law to protect them from
12 https://www.merriam-webster.com/dictionary/default [https://perma.cc/HN7R-LDDE];
https://dictionary.cambridge.org/dictionary/english/default [https://perma.cc/7R79-
MMWC].
Case 5:25-cv-05140-TLB Document 69 Filed 04/20/26 Page 19 of 24 PageID #:
<pageID>

20
sexual exploitation online. But the law, in effect, allows children to decide whether they
need protection from sexual exploitation online because they are free to depart from the
protective default. As Defendants’ evidence shows, teenagers’ developing brains make
them less likely than adults to appreciate the risks associated with, for example, making
their profiles public. See Doc. 57-10, ¶ 51 (Radesky Dec.) (“Because of the general sense
of invulnerability teens experience, they often do not pay attention to the risks or future
consequences of their immediate behavior, such as spending money or sending a
sexually intimate image.” (footnote omitted)). Like the notification default, while the
burdens imposed by the privacy default may be slight, they do not appear likely to serve
the State’s asserted interest at all. Imposing small burdens on vast quantities of speech
for no appreciable benefit is not consistent with the First Amendment. Arkansas cannot
sentence speech on the internet to death by a thousand cuts. The default provisions likely
violate the First Amendment.
3. Dashboard Provision
Finally, NetChoice contends that the dashboard provision compels its members’
speech. Defendants assert that the dashboard provision is a permissible disclosure
requirement under Zauderer.
The Supreme Court recognizes two levels of scrutiny governing commercial
speech. Central Hudson provides the more burdensome test for “commercial speech
restrictions [that] are content- or speaker-based.” 1-800-411-Pain Referral Serv., LLC v.
Otto, 744 F.3d 1045, 1055 (8th Cir. 2014) (citing Cent. Hudson Gas & Elec. Corp. v. Pub.
Serv. Comm’n of N.Y., 447 U.S. 557, 566 (1980)). Under Central Hudson, the Court asks
“(1) whether the commercial speech at issue concerns unlawful activity or is misleading;
(2) whether the governmental interest is substantial; (3) whether the challenged regulation
Case 5:25-cv-05140-TLB Document 69 Filed 04/20/26 Page 20 of 24 PageID #:
<pageID>

21
directly advances the government's asserted interest; and (4) whether the regulation is
no more extensive than necessary to further the government's interest.” Id.
The 	less burdensome 	test from 	Zauderer applies to 	regulations 	mandating
disclosure of “purely factual and uncontroversial information.” 471 U.S. at 651. Such a
regulation 	is 	permissible 	if 	the 	disclosure 	is 	reasonably 	related 	to 	a 	substantial
government interest and is not unjustified or unduly burdensome. Id. Defendants ask the
Court to apply the lower standard from Zauderer. NetChoice disputes that Zauderer
applies, but argues that even if it does, this provision is so unduly burdensome that it fails
even this less stringent standard. The Court agrees.
Act 900 requires platforms to “[d]evelop an easily accessible online dashboard to
allow a parent of a minor user to view and understand his or her child’s use habits.” Act
900, sec. 2, § 4-88-1402(d)(4)(A) (emphasis added). This dashboard “shall also provide
tools for a parent to restrict his or her minor child’s access to the covered social media
platform, or logical portions of the covered social media platform.” Id. § 1402(d)(4)(B).
Under Act 900, a “user” is definitionally distinct from an “account holder.” So the
dashboard provision applies only to website visitors, which would seem to require that
platforms: (1) collect age information from everyone who visits a covered platform to
identify minors; and (2) collect and store identity information for every minor who visits a
platform to track their “use habits,” connect them with their parents, and effectuate “tools
for a parent to restrict his or her minor child’s access.” Id. § 1402(d)(4).
The Court questions whether this was the General Assembly’s intended result. But
“in construing an act, the courts are bound by specific definitions of a word by the
legislature in that act, regardless of the usual and ordinary meaning of that word; unless
Case 5:25-cv-05140-TLB Document 69 Filed 04/20/26 Page 21 of 24 PageID #:
<pageID>

22
the definition is arbitrary, creates obvious incongruities in the statute, defeats a major
purpose of the legislation or is so discordant to common usage as to generate confusion.”
Bird v. Pan W. Corp., 261 Ark. 56, 60 (1977).13
Here, the definition of “user” is not arbitrary, and while its use in this provision may
strike the Court as odd, it is not so obviously incongruous, self-defeating, or confusing
that the Court can simply disregard the word and definition chosen by the General
Assembly. Indeed, with respect to the privacy default, Defendants’ briefing contemplates
that parents need tools to exert control over their children’s social media use beyond the
devices parents themselves provide. See Doc. 56, p. 42 (“Even if a parent refuses to give
their children an internet-capable device, their children could easily borrow a friend’s.
What’s more, some children likely need to access the internet to complete school
assignments.”). Considered in conjunction with the enjoined but extant parental-consent
requirement for minor “account holders,” it is possible that the legislature concluded
parents needed additional social media supervision tools for minor “users” in particular,
since they are not subject to the parental-consent requirement.
The burdens imposed by the dashboard provision are a lot heavier than those
imposed by the fine print required in Zauderer. This requirement would force platforms to
compile scores of data about minor visitors to their websites, “somehow identify each
minor’s parents” to provide dashboard access to them, and follow minors across devices
to 	enforce 	parental 	restrictions. 	(Doc. 	64, 	p. 	28). 	Such 	a 	requirement 	is 	unduly
burdensome and seems likely to chill platforms’ dissemination of speech to or from
13 “Interpreting state statutes, this court applies that state’s rules of statutory construction.”
Behlmann v. Century Sur. Co., 794 F.3d 960, 963 (8th Cir. 2015).
Case 5:25-cv-05140-TLB Document 69 Filed 04/20/26 Page 22 of 24 PageID #:
<pageID>

23
anyone who is not an account holder. The dashboard provision is unlikely to survive even
under the lenient standard Defendants ask the Court to apply.
C. Irreparable Injury
“When a plaintiff has shown a likely violation of his or her First Amendment rights,
the other requirements for obtaining a preliminary injunction are generally deemed to
have been satisfied.” Minn. Citizens Concerned for Life, Inc. v. Swanson, 692 F.3d 864,
870 (8th Cir. 2012) (en banc) (citation omitted). “It is well-established that ‘[t]he loss of
First Amendment freedoms, for even minimal periods of time, unquestionably constitutes
irreparable injury.’” Powell v. Noble, 798 F.3d 690, 702 (8th Cir. 2015) (alteration in
original) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)). The addictive practices
provision, because of its “objectionable vagueness” likewise threatens “delicate and
vulnerable” First Amendment freedoms with its “susceptib[ility] of sweeping and improper
application.” Nat'l Ass'n for Advancement of Colored People v. Button, 371 U.S. 415, 433
(1963). NetChoice has shown that it is likely to suffer irreparable injury if Act 900 goes
into effect.
D. Balance of the Equities and the Public Interest
“[I]t is always in the public interest to protect constitutional rights” and “[t]he balance
of equities, too, generally favors the constitutionally-protected freedom of expression.”
Phelps-Roper v. Nixon, 545 F.3d 685, 690 (8th Cir. 2008), overruled on other grounds by
Phelps-Roper v. City of Manchester, 697 F.3d 678 (8th Cir. 2012) (en banc). While
enjoining enforcement of a duly enacted statute does, in some sense, harm the State,
any such harm “cannot be held sufficient to overcome the public’s interest in protecting
freedom of expression under the First Amendment.” Rodgers v. Bryant, 942 F.3d 451, 458
(8th Cir. 2019).
Case 5:25-cv-05140-TLB Document 69 Filed 04/20/26 Page 23 of 24 PageID #:
<pageID>

24
IV. CONCLUSION
For these reasons, NetChoice’s Motion for Preliminary Injunction (Doc. 51) is
GRANTED. Defendants and their officers, agents, affiliates, subsidiaries, servants,
employees, successors, and all other persons or entities in active concert or privity or
participation with them, are hereby PRELIMINARILY ENJOINED under Federal Rule of
Civil Procedure 65(a) from enforcing the provisions of Act 900 against NetChoice’s
members, pending final disposition of the issues on the merits.
IT IS SO ORDERED on this 20 th day of April, 2026.
___________________________________
TIMOTHY L. BROOKS
CHIEF UNITED STATES DISTRICT JUDGE
Case 5:25-cv-05140-TLB Document 69 Filed 04/20/26 Page 24 of 24 PageID #:
<pageID>