NetChoice Presses for Discovery Stay in Challenge to Ark. Social Media Law

Arkansas Attorney General Tim Griffin’s (R) Nov. 13 opposition to NetChoice’s Oct. 27 motion for a discovery stay pending the resolution of NetChoice’s forthcoming dispositive motion in NetChoice’s constitutional challenge to SB-396, the Arkansas age-verification Social Media Safety Act (see 2311140045), confirms that the court should stay discovery, said NetChoice’s reply Friday (docket 5:23-cv-05105) in U.S. District Court for Western Arkansas in Fayetteville in support of the discovery stay. The state’s lead argument “targets a straw man” when it asserts that NetChoice is asking the court to stay discovery based on a “hypothetical, unfiled motion,” said NetChoice’s reply. In reality, NetChoice’s dispositive motion “is scarcely hypothetical,” it said. It will be filed before the Nov. 30 case-management conference “at which the motion to stay will be ripe for resolution,” it said. The state’s remaining arguments “likewise rest on a false premise,” that NetChoice’s claims will rise or fall based on factual conflicts that necessitate discovery, said NetChoice’s reply. The parties may disagree “about the efficacy of existing tools to keep minors safe online,” and whether SB-396's “exception-riddled” age verification and parental consent regime “would meaningfully advance any legitimate governmental interest,” it said. But those disputes are “ultimately immaterial” because SB-396 is “unconstitutional on its face,” it said. Conducting a full and robust discovery process, as the state urges, “would therefore waste the time and resources of all involved,” it said. Worse, it would impose “speech-chilling burdens” on NetChoice members, allowing the state “to conduct a fishing expedition at their expense in hopes of manufacturing a post hoc rationalization for its blatantly unconstitutional law,” it said.