Ark. AG, NetChoice Spar Over 3rd-Party Standing to Challenge Social Media Law

NetChoice and Arkansas Attorney General Tim Griffin (R) exchanged dueling briefs Wednesday in U.S. District Court for Western Arkansas in Fayetteville over whether NetChoice and its members have third-party standing to challenge the state’s social media age verification law on their own behalf or on behalf of current and future social media users (see 2307280019). NetChoice seeks a preliminary injunction to block Griffin from enforcing the measure, SB-396, when it takes effect Sept. 1 (see 2307100005).

Even if NetChoice’s members did have third-party standing, which they don’t, that standing “is an exception to the general rule that plaintiffs must bring their own claims,” said Griffin’s brief (docket 5:23-cv-05105). The court shouldn’t extend that exception “still further by allowing NetChoice to assert third-party standing on its members’ behalf, essentially creating a doctrine of fourth-party standing,” it said.

NetChoice’s members can’t satisfy the third-party standing requirements, said Griffin’s brief. NetChoice must demonstrate three things for third-party standing, even when asserting a First Amendment claim, it said. NetChoice members need to show they suffered an injury in fact, and that its members have a close relation to the third-party social media users they’re purportedly trying to protect, it said. They also need to show the third-party users were hindered in their ability to protect their own interests, it said.

NetChoice hasn't asserted that SB-396 violates its members’ First Amendment rights, said Griffin’s brief. On the close relation requirement, NetChoice’s members don’t have “a sufficiently close relationship with unknown, potential, hypothetical future users,” it said.

With current users, NetChoice and its members “have conflicting interests that override any close relation they would otherwise have,” said Griffin’s brief. SB-396 “protects children from sexual exploitation, which parents and minor users would likely favor,” it said. Social media companies “are businesses that seek a profit, and they do not have the same concerns as parents and children,” it said. On the hindrance requirement, social media users aren’t hindered “from bringing their own claims,” it said.

But from NetChoice’s perspective, the association has standing “both to bring this case and to vindicate the First Amendment rights of third parties who are also impacted” by SB-396, said its brief. NetChoice brought the case on behalf of its members, many of which “are or at least appear to be regulated” by SB-396, it said.

An association has standing to proceed on behalf of its members as long as “at least one of its members has standing,” said NetChoice’s brief. Standing also requires that “the interests at stake are germane to its purpose,” and that “neither the claim nor the relief requested requires participation of its members,” it said.

The only question, then, is whether NetChoice’s members “have standing in their own right and to vindicate the First Amendment rights of those who would like to use their services,” said NetChoice’s brief. “They plainly have both,” it said: “Indeed, they have standing in their own right twice over.”

SB-396 requires NetChoice members “to take costly compliance measures or face potential sanctions,” said NetChoice’s brief. The measure also restricts their First Amendment right “to disseminate information to others to boot,” it said.

Long-standing U.S. Supreme Court precedent confirms that NetChoice “may assert the First Amendment rights of adults and minors to speak and receive speech on their services,” said NetChoice's brief. Those injuries “are all directly traceable” to SB-396, it said. An injunction prohibiting AG Griffin from enforcing SB-396 “would redress those injuries,” it said: “Accordingly, there are no standing concerns here.”