NetChoice v. Tim Griffin, in his Official Capacity as Attorney General of Arkansas et al.

              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                             
                     TABLE OF CONTENTS                                  

I.  BACKGROUND .......................................................................................................... 1 
II.  LEGAL STANDARD .................................................................................................. 7 
III.  DISCUSSION ............................................................................................................ 8 
A.  Severability ........................................................................................................... 8 
B.  Likelihood of Success on the Merits .................................................................. 9 
 1.  First Amendment ................................................................................................. 9 
 2.  Void for Vagueness ........................................................................................... 25 
 3.  Section 230 Preemption .................................................................................... 29 
C.  Irreparable Harm ................................................................................................ 31 
D.  Balance of the Equities and the Public Interest .............................................. 32 
IV.  CONCLUSION ........................................................................................................ 32 
   NetChoice, an Internet trade association, asks the Court to preliminarily enjoin 
enforcement  of Arkansas Act  901  of  2025,  which  imposes  liability  on  social  media 
platforms for certain harmful effects a platform may have on a user. NetChoice argues 
that Act 901 violates the First Amendment, is void for vagueness, and is preempted by 

§ 230 of the Communications Decency Act. For the reasons that follow, NetChoice’s 
Motion for Preliminary Injunction (Doc. 23) is GRANTED.1                  
                       I.  BACKGROUND                                   
   Act 901 has two operative provisions. First, § 1502 prohibits a social media 
platform from using “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: 
   (1) Purchase a controlled substance;                                 
   (2) Develop an eating disorder;                                      
   (3) Commit or attempt to commit suicide; or                          
   (4) Develop or sustain an addiction to the social media platform.”   

Id. (codified at 

Ark. Code Ann. § 4-88-1502

). Under the general provisions of Chapter 88, 
the Attorney General has authority to file civil suits to enforce this provision, and the 
prosecuting  attorneys  may  charge  knowing  and  willful  violations  as  Class  A 
misdemeanors. 

Ark. Code Ann. §§ 4-88-103

 and -104.                        
   Second, § 1503 creates a private right of action entitling a parent to damages and 
other relief if their child commits or attempts suicide “following exposure to online content 


1 The Court held a hearing on the Motion on October 28, 2025. The Court has considered 
NetChoice’s  Brief  in Support and  Exhibits  (Docs.  24–28),  Defendants’  Response  in 
Opposition and Exhibits (Docs. 36–37), NetChoice’s Reply (Doc. 40), and the parties’ 
post-hearing supplements (Docs. 44 & 46).                                 
promoting, or otherwise advancing, self-harm or suicide” on a “social media platform that 
hosted, promoted, shared, or otherwise facilitated the immediate connection between the 
victim and the content.” Id. (codified at § 4-88-1503(b)). A platform that “knowingly and 
willfully violates” this provision is also liable for a “civil penalty not to exceed ten thousand 

dollars ($10,000) per violation.” Id. § 1503(a).                          
   Act 901 defines a “social media platform” as “a business entity or organization that 
operates an online platform, application, or service that:                
   (A) Is designed to facilitate user-to-user, user-to-group, or user-to-public 
   interaction, expression, or communication;                           
   (B) Assigns, utilizes, or relies on a unique identifier, username, profile name, 
   or image that is associated with a specific user account;            
   (C) 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;                                                         
   (D) 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;                                                            
   (E)  Generates  revenue  primarily  through  user  engagement,  including 
   without limitation through advertising, user data monetization, or premium 
   content; and                                                         
   (F) Is accessed by Arkansas users.”                                  
Id. (codified at § 1501(a)(5)).                                           
   Which platforms are covered by this definition is not disputed. Many of NetChoice’s 
members are covered, including many of the usual suspects—Meta (parent of Facebook 
and Instagram), YouTube, Snap Inc. (parent of Snapchat), Reddit, Pinterest, Nextdoor, 
and X. See Doc. 26, ¶ 4. There is no doubt that users engage in constitutionally protected 
speech on these platforms. Packingham v. North Carolina, 

582 U.S. 98, 105

 (2017) 
“[S]ocial media users employ these websites to engage in a wide array of protected First 
Amendment activity . . . .”). Platforms themselves also engage in a range of protected 
expression on their platforms, including the exercise of “editorial judgment[ ]” to “include 

and exclude, organize and prioritize” user-generated content. Moody v. NetChoice, LLC, 

603 U.S. 707

, 716–18 (2024).                                              
   Social media platforms as commonly understood and as defined by Act 901 
generate revenue through advertising. Platforms are therefore designed to maximize the 
amount of time users spend on them in order to maximize ad revenue. “[T]he most 
effective way of maintaining a behavior” is intermittent variable rewards. Vikram R. 
Bhargava & Manuel Velasquez, Ethics of the Attention Economy: The Problem of Social 
Media Addiction, 31 Bus. Ethics Q. 321, 327 (2021) (Doc. 37-15). Platforms therefore 
make use of intermittent variable rewards to encourage users to spend more time online. 
“Intermittent” means the number of times a user must engage in a behavior (e.g., checking 

Facebook) before getting a reward (e.g., likes on their post) is not fixed. “Variable” means 
the size of the reward (e.g., the number of likes) is not fixed, either. Platforms use 
intermittent variable rewards both in how they prioritize content (“I might be rewarded with 
an interesting video if I keep scrolling.”) and in their social feedback systems (“I might be 
rewarded with a like or comment if I check Facebook.”). The use of intermittent variable 
rewards has caused some people to liken social media to slot machines. 

Id.

 at 326–27; 
Von Tristan Harris, The Slot Machine in Your Pocket, Spiegel Int’l (July 27, 2016) (Doc. 
37-2).2                                                                   
   Platforms also use engagement-based algorithms that rely on the wealth of data 
platforms collect about and from their users: “by monitoring the amount of time particular 

kinds of content keep the particular user engaged with the platform,” the platform can 
select and order content in a way that is likely to keep that user online for longer by, for 
example, waiting to show the most interesting content until right before it predicts the user 
will close the app. Bhargava & Velasquez, supra, at 334. This data also allows platforms 
to  target  advertisements based  on  user  interest. More  data about  users  and  more 
computing power means platforms’ effectiveness in keeping users online is likely to 
continue improving.                                                       
   Social media is particularly fraught for young people, who have less developed 
impulse control systems and are especially sensitive to social feedback, peer pressure, 
and  the  negative  cognitive  effects  of  insufficient  sleep.  Potential  Risks  of  Content, 

Features, and Functions: The Science of How Social Media Affects Youth, Am. Psych. 
Ass’n  (Apr.  2024)  (Doc.  37-12).3  The American  Psychological Association  and  the 
Surgeon General have both issued health advisories regarding minors’ social media use. 
Id.; U.S. Surgeon General, Social Media and Youth Mental Health (2023).4  


2    https://www.spiegel.de/international/zeitgeist/smartphone-addiction-is-part-of-the-
design-a-1104237.html [https://perma.cc/2MM8-NB4G].                       

3          https://www.apa.org/topics/social-media-internet/youth-social-media-2024 
[https://perma.cc/A7GV-QRTL].                                             

4        https://www.hhs.gov/sites/default/files/sg-youth-mental-health-social-media-
advisory.pdf [https://perma.cc/3HU9-S6ZA].                                
   Defendants say that Act 901 is necessary because social media platforms “hold a 
vast  amount  of  power  over Arkansans”  but  “have  refused  to  exercise  that  power 
responsibly.” (Doc. 36, p. 4). Indeed, social media is used by billions of people worldwide, 
and millions in the United States. The average user spends hours a day on social media. 

Vaishnavi Jahagirdar et al., Assessment of the Impact of Social Media Addiction on 
Psychosocial Behavior Like Depression, Stress, and Anxiety in Working Professionals, 
BMC Psych., 2024, at 2 (Doc. 37-4). And “a tiny proportion of Americans—between 5 and 
10%—show addicted behaviors and use [social media] obsessively.” Id. In addition to 
social media addiction itself, Act 901 is also meant to address eating disorders, suicide, 
and drug use brought on by social media.                                  
   Social media use has been linked to negative body image: Meta’s own research 
found that “[t]hirty-two percent of teen girls said that when they feel bad about their bodies, 
Instagram made them feel worse.” Georgia Wells, Jeff Horwitz & Deepa Seetharaman, 
Facebook Knows Instagram Is Toxic for Teen Girls, Company Documents Show, Wall St. 

J.  (Sept.  14,  2021)  (Doc.  37-7);5  Zubair,  supra,  at  2  (“This  appearance-related 
preoccupation inflicted by social media has been found to be directly proportional to its 
usage . . . .”).                                                          
   Research also indicates that “[e]xtended use of social networking sites . . . may be 
associated with negative symptoms of depression, anxiety, and stress.” Id.; Ujala Zubair 
et al., Link Between Excessive Social Media Use and Psychiatric Disorders, 85 Annals of 
Med. & Surgery 875, 875 (2023) (Doc. 37-19). And excessive internet use has been linked 


5  https://www.wsj.com/tech/personal-tech/facebook-knows-instagram-is-toxic-for-teen-
girls-company-documents-show-11631620739.                                 
to increased suicidal ideation: “Several studies have shown that those who manifest an 
internet addiction, including a social media addiction, are more likely than others to have 
suicidal ideation.” Bhargava & Velasquez, supra, at 330 (citations omitted); but see 
Zubair, supra, at 877 (“Social media usage can increase the probability of self-injury by 

conveying different methods of self-mutilation, a sense of competition, and contagion, but 
these sites are also an important source of online emotional support.”).  
   Finally, Defendants offer one report which found that TikTok served accounts 
registered to minors “videos about drug use, references to cocaine and meth addiction, 
and promotional videos for online sales of drug products and paraphernalia,” and another 
study which observed a link between alcohol overuse and “watching a higher number of 
alcohol-related posts.” Rob Barry et al., How TikTok Serves Up Sex and Drug Videos to 
Minors, Wall St. J. (Sept. 8, 2021) (Doc. 37-6);6 Zubair, supra, at 877.  
   For its part, NetChoice does not deny that its members’ platforms are designed to 
maximize the time users spend on them. But it does assert that its “members expend 

significant resources curating the content on their services to ensure that it is appropriate 
for adults and teens alike.” (Doc. 24, p. 6). NetChoice’s members have policies “that 
restrict content related to illicit drugs.” (Doc. 26, ¶ 9). They also regulate content that 
promotes suicide, self-harm, or eating disorders. Id. ¶ 10. And they purport to provide 
additional protections for minor users by “age gating” certain sensitive content that is not 
prohibited outright. See Doc. 24, p. 7.                                   
   Enforcing these policies is expensive, and prohibited content has a way of getting 
through the cracks. Meta, for example, has spent over $20 billion on “safety and security 


6 https://www.wsj.com/tech/tiktok-algorithm-sex-drugs-minors-11631052944. 
since 2016” and employs over 40,000 people in safety and security roles. (Doc. 28, ¶ 32). 
It uses “both automated and human review to detect violations” because, with billions of 
pieces of user-generated content coming in every day, “it is not possible to manually 
review every piece of user-generated content that potentially violates Meta’s policies.” Id. 

¶ 44. In January through March of this year, YouTube removed nearly 3 million channels, 
over 8.5 million videos, and over 1.2 billion comments. (Doc. 25-15). The bulk of these 
removals are effectuated through YouTube’s automated system. Id.          
   As this Court has previously found, there is no doubt that unfettered social media 
access can harm minor users. And there is evidence to support the conclusion reached 
by the Arkansas legislature that unfettered social media access can also harm adult 
users. But under existing First Amendment jurisprudence, the scope of that harm relative 
to the efforts social media platforms take to prevent it is largely beside the point. See 
United States v. Stevens, 

559 U.S. 460, 470

 (2010) (“The First Amendment's guarantee 
of free speech does not extend only to categories of speech that survive an ad hoc 

balancing of relative social costs and benefits.”).                       
                     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. 
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). 
                        III.  DISCUSSION                                
                        A.  Severability                                
   Before reaching NetChoice’s merits arguments, the Court addresses the parties’ 
severability arguments. The Court generally agrees with NetChoice that if Defendants 
want the Court to sever a statute, they must raise severability. But in this preliminary 
injunction posture, the severability question is bound up with the scope of relief question 
that Defendants did raise. See Doc. 36, pp. 31–32. The Court is powerless to enjoin 
provisions of state law for which no Defendant in this case is imbued with enforcement 

authority. See Whole Woman's Health v. Jackson, 

595 U.S. 30

, 43–44 (2021) (“[U]nder 
traditional equitable principles, no court may ‘lawfully enjoin the world at large,’ or purport 
to enjoin challenged ‘laws themselves.’” (citations omitted)). Counsel for Defendants 
represents that § 1503(b) is limited to a private right of action by a parent or guardian and 
that the Attorney General does not have the authority to enforce this provision.  
   States  generally  enjoy  sovereign  immunity  in  federal  courts  from  suits 
   brought by citizens of other states and their own citizens. . . . Ex parte Young 
   permits some actions for prospective injunctive relief against state officials 
   acting in their official capacities, so long as the official has ‘some connection 
   with the enforcement’ of the challenged law.                         
Bio Gen LLC v. Sanders, 

142 F.4th 591, 604

 (8th Cir. 2025) (quoting Ex parte Young, 

209 U.S. 123, 157

 (1908). Whatever the propriety of § 1503(b), the Court cannot, consistent 
with the Eleventh Amendment, enjoin it here, where Defendants disclaim enforcement 
authority.                                                                

   Therefore,  in  the  discussion  below,  the  Court  considers  only  the  remaining 
provisions of Act 901. The Court assumes for purposes of this Motion that the Attorney 
General has authority to enforce § 1503(a), which imposes “[a] civil penalty not to exceed 
ten thousand dollars ($10,000) per violation” on “[a] social media platform that knowingly 
and willfully violates this section.” Per Defendants’ concessions (and the plain text of the 
statute), the portions of Act 901 that refer to “this section” apply only to the section in 
which they are codified, e.g., § 1502(b)’s safe harbor provision is limited to § 1502, and 
§ 1503(d)’s carve-outs are limited to § 1503.                             
               B.  Likelihood of Success on the Merits                  
                      1.  First Amendment                               
   The First Amendment protects Americans against government action “abridging 

the freedom of speech.” Social media users engage in protected First Amendment activity 
on social media platforms. Packingham, 

582 U.S. at 105

. And the platforms themselves 
engage in protected First Amendment activity when they make editorial choices “about 
what third-party speech to display and how to display it.” Moody, 

603 U.S. at 716

. 
   NetChoice brings both facial and as-applied challenges to Act 901. A law is facially 
invalid under the First Amendment “if the law's unconstitutional applications substantially 
outweigh  its  constitutional  ones.”  Moody,  

603 U.S. at 724

.  Defendants  assert  that 
NetChoice cannot succeed on its facial First Amendment challenge because Act 901 has 
many constitutional applications, although they failed to identify any.   
   In Moody, the Supreme Court looked at two facial challenges to state laws that 
“limit[ed] [social media] platforms’ capacity to engage in content moderation” based on 
the states’ concern that platforms were censoring certain speech and speakers. 

603 U.S. at 717, 722

. The Court concluded that both lower courts had improperly applied the facial 

challenge standard because they failed to consider “the full range of activities the laws 
cover, and measure the constitutional against the unconstitutional applications,” and 
instead only looked at the constitutionality of certain “heartland applications,” namely 
“Facebook’s News Feed and its ilk.” 

Id. at 724

.                           
   Per Moody, “[t]he first step in the proper facial analysis is to assess the state laws’ 
scope. What activities, by what actors, do the laws prohibit or otherwise regulate?” 

Id.

  
   On the “what actors” question, the laws at issue in Moody covered more, and more 
diverse, actors than does Act 901. See 

id.

 at 720–21. There, the laws defined “social 
media platform” expansively, potentially reaching “an email provider like Gmail,” “an 
online marketplace like Etsy,” and “a payment service like Venmo.” 

Id. at 725

. Here, Act 

901 is limited to website or applications that, among other things, “[e]mploy[ ] features 
that allow a user to connect, follow, or establish a relationship with other users,” and 
“[g]enerate[ ] revenue primarily through user engagement, including without limitation 
through advertising, user data monetization, or premium content.” It therefore does not 
regulate e-commerce platforms like Uber, Etsy, or Venmo (which do not generate revenue 
primarily through user engagement) or email providers like Gmail (which does not allow 
users to connect, follow, or establish relationships with other users). Instead, Act 901 
applies to social media platforms as commonly understood, Facebook and Instagram, 
TikTok, Reddit, Snapchat, Pinterest, X, and whatever new platforms may hit the scene in 
the future.                                                               
   As to “activities,” § 1502 regulates any “design, algorithm, or feature” on any 
regulated platform to the extent that that design, algorithm, or feature causes a prohibited 

result. This capacious language does, as Defendants argue, cover many applications, 
some that implicate either the platform’s or the user’s speech, and some that do not. As 
far as the Court can tell, this includes the prototypical recommendation algorithms used 
to order Facebook’s News Feed and YouTube’s homepage, as well as filters, social 
feedback i.e., “likes,” search functions, direct messaging, endless scroll, privacy settings 
(or the lack thereof), data-collection practices, and even where platforms put the “delete 
account” button. There are probably other “designs, algorithms, or features” that neither 
the parties nor the Court have identified. In sum, the Act regulates pretty much everything 
a social media platform does.                                             
   Section 1503 regulates “host[ing], promot[ing], shar[ing], or otherwise facilitat[ing] 

the immediate connection between” a minor user and “online content promoting, or 
otherwise advocating, self-harm or suicide,” if, “following exposure to” that content, the 
minor “commits suicide or attempts to commit suicide that results in significant bodily or 
cognitive harm.”7 Section 1503 has carve-outs for “[d]isplaying content that is created and 
hosted entirely by a third party, including without limitation an advertisement managed by 
a third party and shared on the social media platform” and for conduct protected by the 
First Amendment or the Arkansas Constitution.                             



7 Act 901 defines a minor as “an individual under sixteen (16) years of age.” § 1501(a)(2). 
   “The next order of business is to decide which of the laws’ applications violate the 
First Amendment, and to measure them against the rest.” Moody, 

603 U.S. at 725

. One 
important difference between this case and Moody is that the challenged laws in Moody 
restricted the removal or suppression of user speech, while Act 901 does the opposite, 

restricting the dissemination or promotion of user speech. This raises different First 
Amendment concerns because forcing a platform to carry user speech it would rather 
remove burdens the platform’s speech, but not the user’s, while forcing a platform to 
suppress user speech it would rather promote burdens both the platform’s and the user’s 
speech.  For  example,  the  Moody  Court  suggested  the  challenged  laws  might 
constitutionally be applied to direct messaging services on platforms to the extent that 
such services do not involve a platform’s editorial judgment. Moody, 

603 U.S. at 725

. But 
here, Act 901 would plainly be unconstitutional if it was applied to require platforms to 
censor users’ direct messages about, for example, marijuana use. Therefore, applications 
that do not involve the platform’s editorial discretion are still subject to First Amendment 

scrutiny when they burden users’ speech.8                                 
   Starting with the likely constitutional applications, Defendants failed to identify any. 
They  offer  just  two  purportedly  constitutional  examples:  “[A]  particular  notification 
method,” (Doc. 36, p. 13), which is likely protected speech. NetChoice v. Bonta, 

761 F. Supp. 3d 1202

, 1224–28 (N.D. Cal. 2024). And a Snapchat filter that encourages users 
to drive at dangerous speeds, (Doc. 36, p. 10), which is not covered by Act 901.  



8 Under the facial challenge analysis, the Court must consider the constitutionality of all 
applications of the Act, not just those applications that implicate the particular plaintiff’s 
First Amendment rights.                                                   
   Outside Defendants’ examples, the Court can conceive of some applications of 
§ 1502  that  are  likely  constitutional  because  they  involve  platforms’  non-expressive 
conduct and  impose minimal  incidental  burdens  on  speech.  Such  applications  may 
include: appearance-altering filters; data collection practices; display features unrelated 

to the ordering of content, e.g., infinite scroll, autoplay; and difficult to access parental 
controls or “delete account” buttons. See In re Soc. Media Adolescent Addiction/Pers. Inj. 
Prods. Liab. Litig., 

702 F. Supp. 3d 809

, 836 (N.D. Cal. 2023), motion to certify appeal 
denied, 

2024 WL 1205486

 (N.D. Cal. Feb. 2, 2024); Comput. & Commc'ns Indus. Ass'n 
v. Paxton, 

747 F. Supp. 3d 1011

, 1035–36 (W.D. Tex. 2024); see infra pp. 21–22.  
   Section 1503, however, always premises liability on the content of the speech to 
which a user is exposed—“online content promoting, or otherwise advancing, self-harm 
or suicide”—and therefore has no application that is exempt from First Amendment 
scrutiny.                                                                 
   In its more constitutionally suspect applications, § 1502 also implicates platform or 

user speech by requiring platforms to change what speech they disseminate or how they 
prioritize that speech.9 These applications must therefore withstand heightened scrutiny 
under the First Amendment. Like § 1503, three of § 1502’s four prohibited results (drugs, 
eating disorders, and suicide) impose content-based restrictions on platforms’ editorial 
discretion and on users’ speech. And the fourth (social media addiction), even assuming 
it is content neutral, is not narrowly tailored to further the State’s interests.    


9 The First Amendment protects a user’s right to disseminate their own speech and to 
receive the speech of others against government infringement. Sorrell v. IMS Health Inc., 

564 U.S. 552, 568

 (2011); Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, 
Inc., 

425 U.S. 748

, 756–57 & n.15 (1976).                                 
   “‘Content-based  laws—those  that  target  speech  based  on  its  communicative 
content—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)). Content-neutral laws are subject to 
“intermediate scrutiny.” 

Id.

 “Under that standard, a law will survive review ‘if it advances 
important governmental interests unrelated to the suppression of free speech and does 
not burden substantially more speech than necessary to further those interests.’” 

Id.

 
(quoting Turner Broad. Sys., Inc. v. FCC, 

520 U.S. 180, 189

 (1997)).      
   Section 1502’s first three prohibited results, and § 1503 as a whole, clearly impose 
content-based  restrictions  on  speech.  Section  1502  is  susceptible  to  two  possible 
interpretations,  but  either  one  would  impose  a  content-based  restriction. A  “design, 
algorithm, or feature that . . . causes [a prohibited result]” could be read to include only 

those designs, algorithms, or features that, by themselves and without user input, cause 
a  prohibited  result.  For  example,  one  could  imagine  that  TikTok’s  recommendation 
algorithm always prioritizes videos by BMI, with thinner users’ videos being ranked higher. 
This algorithm may, by itself, cause a user to develop an eating disorder. And § 1502 
would  forbid  TikTok  from  making  the  editorial  choice  to  prioritize  thinner  users—a 
content-, and perhaps even viewpoint-, based restriction on TikTok’s speech. 
   But a “design, algorithm, or feature that . . . causes a [prohibited result]” might also 
include a design, algorithm, or feature that the platform knows may cause a prohibited 
result in response to certain user input.10 For example, YouTube, like many platforms, has 
a search feature. The search feature in and of itself is unlikely to cause a prohibited result. 
But sometimes it’s a bad idea to show a user the content they search for. For example, if 
a user searches “how to tie a noose,” YouTube knows that displaying videos responsive 

to that search risks causing the user to commit or attempt to commit suicide, so YouTube, 
of its own volition, displays a “You’re not alone” message, links for a suicide crisis line, 
and a note that “the following results may be about suicide or self-harm” with an option to 
“show anyway.”11 Can YouTube be held liable under Act 901 for offering the “show 
anyway” option?                                                           
   Taking  it  a  step  farther,  YouTube  generally  makes  recommendations  on  its 
homepage based on a user’s search history.12  A user who searched for cat videos in the 
past will be recommended cat videos in the future. But YouTube should probably know 
that recommending videos about nooses to a user who searched “how to tie a noose” in 
the past could cause that user to attempt suicide. If YouTube treats “how to tie a noose” 

like any other search for purposes of its recommendation algorithm, it may be subject to 
liability under Act 901. To avoid that liability, YouTube cannot maintain its preferred 
recommendation algorithm and must instead incorporate the State’s editorial judgment 


10 This second reading is, in the Court’s view, the better reading because Defendants 
specifically  point  to  engagement-based  algorithms  as  an  example  of  the  harmful 
algorithms sought to be regulated by Act 901, see Doc. 36, p. 5, but engagement-based 
algorithms are, as the name suggests, necessarily responsive to user engagement. 

11           https://www.youtube.com/results?search_query=how+to+tie+a+noose 
[https://perma.cc/W8KM-LWSF].                                             

12 The editorial judgments influencing YouTube’s homepage were a prototypical example 
of protected platform activity in Moody. 

603 U.S. at 744

.                 
by treating a “how to tie a noose” search differently than a cat search because of the 
search’s content.                                                         
   Defendants argue that § 1502 is not content based because it imposes liability on 
platforms based on the result caused by a design, algorithm, or feature without regard to 

the particular content that design, algorithm, or feature causes to be displayed. But certain 
types of content, like the noose example, are known to be associated with certain results. 
See Bhargava & Velasquez, supra, at p. 337 (“A former drug addict, for example, may 
begin to experience [drug] cravings when seeing drug paraphernalia or watching a movie 
with scenes of people using drugs.”); Teen Mental Health Deep Dive, Wall St. J. (Sept. 
29, 2021) (Doc. 37-17, p. 44) (content about a user wanting to hurt or kill themselves 
makes teens who view that content feel the worst). When platforms know that this type of 
content is posted on their platforms, § 1502 requires them to exercise reasonable care to 
ensure that their designs, algorithms, and features do not promote it, thereby removing 
platforms’ ability to, for example, use content-agnostic recommendation algorithms. And 

Defendants can’t help but admit as much:                                  
   If a social media platform knows based on its research and development 
   that implementing a particular feature will cause users to develop an eating 
   disorder  or  commit  suicide,  then  it  cannot  implement  that  feature—
   regardless of whether the feature is simply a different type of ‘like’ button, 
   an  AI-algorithm  pushing  certain  types  of  content,  or  sending 
   notifications after a certain time of night.                         
(Doc. 39, pp. 19–20). A law that prohibits platforms from pushing “certain types of content” 
but allows them to push other types of content is a content-based law.    
   Because  content-based  laws are  “presumptively  unconstitutional,”  Defendants 
must show that, with respect to § 1503 and the first three prohibited results of § 1502, Act 
901 is narrowly tailored to serve a compelling state interest. Reed, 

576 U.S. at 163

. 
Assuming that Arkansas has a compelling interest “in protecting Arkansans from . . . self-
harm behaviors, such as drug use, eating disorders, and suicide,” see Doc. 36, p. 21, it 
must pursue those interests through the “least restrictive available means,” which should 
be “neither seriously underinclusive nor seriously overinclusive,” United States v. Playboy 

Ent. Grp., Inc., 

529 U.S. 803, 823

 (2000); Brown v. Ent. Merchants Ass'n, 

564 U.S. 786, 805

 (2011). Defendants have failed to prove that these provisions are narrowly tailored to 
serving the State’s asserted interests.                                   
    Section 1502 imposes liability on platforms for disseminating content in a way that 
the  platform  “should  have  known”  would  cause  any Arkansas  user  to  purchase  a 
controlled substance,13 develop an eating disorder, or attempt suicide—even if the vast 
majority of Arkansas users exposed to that content or dissemination method would not 
respond in those manners. By imposing liability on a platform any time the protected 
speech by or on that platform results in a specified “harm” to a single Arkansas viewer 
that the platform should have anticipated, § 1502 impermissibly limits the online posting 

and promotion of protected speech that is not harmful to most viewers. The State cannot 
force platforms to censor potentially sensitive, but protected, speech as to all users for 
the benefit of some subset of particularly susceptible users. Instead, the burden of 
avoiding  that  speech  should  “normally  fall[  ]  upon  the  viewer  to  ‘avoid  further 
bombardment of (his) sensibilities simply by averting (his) eyes.’” Erznoznik v. City of 
Jacksonville, 

422 U.S. 205

, 210–11 (1975) (quoting Cohen v. California, 

403 U.S. 15, 21

 
(1971)). Section 1502 is substantially overinclusive.                     


13 Notably, “controlled substances” under Arkansas law are not limited to illicit drugs. See 

Ark. Code Ann. § 5-64-210

 (tramadol); 

id.

 § 5-64-212 (ephedrine, pseudoephedrine).  
   Section 1503—at least in its public enforcement provision—has less of an over-
inclusivity problem than § 1502 because it requires that the platform “knowingly and 
willfully” facilitate a minor user’s exposure to online content promoting or advancing self-
harm or suicide. Defendants assert that § 1503 is further narrowed by the carve-out from 

platform liability for “[d]isplaying content that is created and hosted entirely by a third party, 
including without limitation an advertisement managed by a third party and shared on the 
social media platform,” which Defendants read as ensuring that platforms are never liable 
for mere failure to remove harmful content. § 1503(d)(1); Doc. 36, p. 17.14 
   Defendants have offered an interpretation of this carve-out that the Court finds less 
than persuasive but, as NetChoice argues, ultimately beside the point. Defendants assert 
that, whatever § 1503(d)(1) means, platforms are liable “when they push or promote 
certain content.” (Doc. 44, p. 5). But platforms’ decisions about what content to “prioritize” 
reflect protected editorial judgment, so even under Defendants’ interpretation, § 1503 
burdens platforms’ speech based on its content.                           

   Defendants have not met their burden to show that § 1503 is the least restrictive 
means  of  accomplishing  the  State’s  interest  in  preventing  suicide.  “When  plaintiffs 
challenge a content-based speech restriction, the burden is on the Government to prove 
that the proposed alternatives will not be as effective as the challenged statute.” Ashcroft 
v. Am. C.L. Union, 

542 U.S. 656, 665

 (2004). NetChoice proposes the less restrictive 
alternative  of  enforcing Arkansas’s  existing  criminal  prohibition  on  “encouraging  the 


14 Defendants also argue that the carve-out for constitutionally protected conduct saves 
§ 1503, but, considering that “content promoting, or otherwise advancing, self-harm or 
suicide” is protected, the Court finds that this clause is “absolutely inconsistent with the 
provisions of the act.”  Atl. Richfield Co. v. Christian, 

590 U.S. 1, 23

 (2020) (citation 
omitted).                                                                 
suicide of another person.” Ark. Code § 5-10-107. Defendants fail to answer this proposal 
with their own argument or evidence for why enforcing this prohibition would not be as 
effective as § 1503 in preventing suicide.                                
   On  the  other  side,  both  operative  provisions  of  Act  901  are  substantially 

underinclusive  because they do not  restrict  “identical  content  that  is  communicated 
through other media.” (Doc. 24, p. 19). Thus, 13 Reasons Why, a TV show which 
graphically depicts a suicide, can remain on Netflix, but YouTube could be liable for 
showing a user clips of the same. Similarly, Netflix can glorify thin bodies and cast 
exclusively thin actresses, but Instagram may be liable if it promotes those actresses’ 
posts thereby causing a user to develop an eating disorder. Defendants respond that 
these non-social media platforms do not have “the same type of emerging research and 
whistleblowers indicating that [they] are causing the same widespread harm that social 
media is causing.” (Doc. 39, pp. 22–23). But Defendants’ own evidence indicates that 
consumption of other types of digital media also risks the prohibited results. Bhargava & 

Velasquez, supra, at 330 (“[P]ersons who have any kind of internet addiction not only 
think  of  suicide  but  also  have  significantly higher  rates  of  planning  and of  actually 
attempting  suicide.”);  id.  at  337  (“A  former  drug  addict,  for  example,  may  begin  to 
experience such cravings when seeing drug paraphernalia or watching a movie with 
scenes of people using drugs.”).                                          
   “Underinclusivity creates a First Amendment concern when,” as in this case, “the 
State regulates one aspect of a problem while declining to regulate a different aspect of 
the problem that affects its stated interest in a comparable way.” Williams-Yulee v. Fla. 
Bar, 

575 U.S. 433, 451

 (2015). This underinclusivity is especially concerning because Act 
901 does not generally bar minors’ access to speech promoting suicide or tending to 
cause  a prohibited  result;  instead,  it  limits  only  their  access  to  forums  in  which  to 
discuss—rather than merely view—this speech. See Comput. & Commc'ns Indus. Ass'n, 
747 F. Supp. 3d at 1037–38 (“A teenager can read Peter Singer advocate for physician-

assisted suicide in Practical Ethics on Google Books but cannot watch his lectures on 
YouTube or potentially even review the same book on Goodreads.”). These unregulated 
activities affect Arkansas’s stated interests in a comparable, if not identical way. Act 901 
is therefore concerningly underinclusive.                                 
   Defendants have failed to establish that §§ 1502(a)(1)–(3) and 1503 are narrowly 
tailored to achieving the State’s asserted interests in protecting Arkansans from drug use, 
eating disorders, and suicide. These provisions of the Act are likely unconstitutional.  
   Finally, § 1502(a)(4) prohibits designs, algorithms, or features that cause a user to 
“[d]evelop or sustain an addiction to the social media platform.” This provision cannot 
survive intermediate scrutiny, so the Court need not determine whether it is content based 

and  assumes  that  it  is  content  neutral. A  content-neutral  law  burdening  speech  is 
consistent with the First Amendment “if it advances important governmental interests 
unrelated to the suppression of free speech and does not burden substantially more 
speech than necessary to further those interests.” Free Speech Coal., 

606 U.S. at 471

. 
    Defendants  assert  that  “Arkansas  has  a  compelling  interest  in  protecting 
Arkansans from social media addiction.” (Doc. 36, p. 21). Generally, state police powers 
include the authority to regulate in the interest of public health, including by restricting or 
prohibiting addictive substances or activities. See Minnesota ex rel. Whipple v. Martinson, 

256 U.S. 41, 45

 (1921) (“There can be no question of the authority of the state in the 
exercise of its police power to regulate the administration, sale, prescription and use of 
dangerous and habit-forming drugs . . . .”); Hawkeye Commodity Promotions, Inc. v. 
Vilsack,  

486 F.3d 430, 439

  (8th  Cir.  2007)  (“A  state's  police  power  encompasses 
controlling gambling, even to the point of abolishing a particular lottery game.”). But the 

recent  emergence  of  “addictive”  technologies  that  disseminate  speech  puts  states’ 
traditional police powers in safeguarding the public health in significant tension with the 
First Amendment’s guarantees. Buchanan v. Warley, 

245 U.S. 60, 74

 (1917) (“[I]t is 
equally well established that the police power, broad as it is, cannot justify the passage 
of a law or ordinance which runs counter to the limitations of the federal Constitution.”).  
   The  Supreme  Court  has  recognized  “that  there  is  a  compelling  interest  in 
protecting the . . . psychological well-being of minors.” Sable Commc'ns of California, Inc. 
v. F.C.C., 

492 U.S. 115, 126

 (1989). It has therefore “sustained legislation aimed at 
protecting the . . . emotional well-being of youth even when the laws have operated in the 
sensitive area of constitutionally protected rights.” New York v. Ferber, 

458 U.S. 747, 757

 

(1982). It is significantly less clear that states are permitted to regulate in these sensitive 
areas to protect the psychological well-being of adults. Cf. Boos v. Barry, 

485 U.S. 312, 321

 (1988) (holding that “psychological damage” is not a “secondary effect” of speech 
that can render a facially content-based statute content neutral).        
   As stated above, some designs or features that may make a platform “addictive” 
do not implicate platforms’ editorial discretion, and prohibiting or restricting these features 
would imposes little, if any, burden on users’ speech. For example, § 1502 might prohibit 
“infinite scroll.” The use of infinite scroll by platforms can hardly be considered expressive, 
and replacing infinite scroll with click to load more or pagination would still provide users 
easy access to the same amount of speech as infinite scroll. This change may help reduce 
compulsive use by providing stopping cues to users, furthering the State’s asserted 
interest  without  substantially  burdening  users’  speech.  See  Bhargava  &  Velasquez, 
supra,  at  327.  The  same  analysis  applies  to  autoplay.  Section  1502’s  addiction 

component is likely constitutional as applied to both these features.     
   However,  the  more  pressing  addiction  driver,  the  use  of  intermittent  variable 
rewards, is achieved through designs, algorithms, and features that present more difficult 
questions. Social feedback features, e.g., likes, shares, or comments, by their very nature 
provide randomly timed rewards because they depend upon the independent action of 
another  user,  not  the  platform.  Prohibiting  this  social  feedback  because  it  causes 
addiction in some users burdens the speech of the many other users for whom this 
feedback is not addictive.                                                
   Platforms also use algorithms to order the content they display, and many of these 
algorithms  incidentally  or  intentionally  incorporate  intermittent  variable  rewards.15  In 

general, an algorithm is simply a “systematic procedure that produces—in a finite number 
of  steps—the  answer  to  a  question  or  the  solution  of  a  problem.”  Algorithm, 
Britannica.com.16 In the social media context, an algorithm is “a set of instructions or rules 




15  For  example,  even  the  simple  reverse  chronological  algorithm  may  create  an 
intermittent variable reward schedule for users because, as a result of the independent 
actions of the accounts a user follows, the posts displayed will naturally vary in how 
interesting or “rewarding” they are.                                      

16 https://www.britannica.com/science/algorithm [https://perma.cc/EWJ4-PHQ6]. 
that a computer application . . . uses to decide what content . . . should be shown to a 
particular user” and in what order. Algorithm, Dictionary.Cambridge.com.17  
   In a world where billions of pieces of content are posted on social media every day, 
social media would be functionally useless as a “vast democratic forum[ ]” if platforms 

were not allowed to use any algorithm—any system—for selecting and ordering content 
to display to users. Reno v. Am. C.L. Union, 

521 U.S. 844, 868

 (1997). If a social media 
platform was a library, banning algorithms would be roughly equivalent to requiring books 
be placed on shelves at random. Such a prohibition would burden users’ (or library 
patrons’) First Amendment rights by making it significantly more difficult to access speech 
a user wishes to receive, so a state probably could not constitutionally ban algorithms for 
the organization of speech (on social media or elsewhere) altogether.     
   But § 1502 does not prohibit all algorithms, only those that a “platform knows, or 
should have known through the exercise of reasonable care, cause[ ] a user to . . . develop 
or sustain an addiction to the social media platform.” NetChoice says § 1502 “forces 

covered services to restrict as to all users—minor or adult—anything that could have a 
forbidden effect [here, addiction] on any users—again, minor or adult.” (Doc. 24, p. 18). 
And Defendants do not dispute this characterization. Accordingly, Defendants cannot 
claim that the Act is narrowly tailored.                                  
   The tailoring requirement does not simply guard against an impermissible 
   desire to censor. The government may attempt to suppress speech not only 
   because it disagrees with the message being expressed, but also for mere 
   convenience. Where certain speech is associated with particular problems, 
   silencing the speech is sometimes the path of least resistance. But by 
   demanding a close fit between ends and means, the tailoring requirement 

17  https://dictionary.cambridge.org/dictionary/english/algorithm  [https://perma.cc/4E7W-
WQ8X].                                                                    
   prevents  the  government  from  too  readily  “sacrific[ing]  speech  for 
   efficiency.”                                                         
McCullen, 573 U.S. at 486 (alteration in original) (quoting Riley v. Nat’l Fed’n of Blind of 
N. C., Inc., 

487 U.S. 781, 795

 (1988)). Even without considering the First Amendment 
interests of the platforms, Act 901 impermissibly “regulate[s] expression in such a manner 
that a substantial portion of the burden on speech does not serve to advance its goals” 
by denying all users access to “a distinctive expressive product” they wish to receive 
because of the threat of addiction in any subset of users, no matter how small. Id.; Moody, 

603 U.S. at 731

. And the mens rea requirement does not help: a platform may know that 
an algorithm is addictive in some habitual users and still wish to give more temperate 

users access to algorithmically curated content, but § 1502 directs that the platform “shall 
not use” the algorithm at all.                                            
    Assuming the State has an important interest in preventing social media addiction 
in children, “that interest does not justify an unnecessarily broad suppression of speech 
addressed to adults. As [the Supreme Court] ha[s] explained, the Government may not 
‘reduc[e] the adult population . . . to . . . only what is fit for children.’” Reno, 

521 U.S. at 875

 (ellipses and third alteration in original) (quoting Denver Area Educ. Telecomm. 
Consortium, Inc. v. FCC, 

518 U.S. 727, 759

 (1996)). Likewise, assuming the State also 
has an important interest in preventing social media addiction in adults, that interest does 
not justify reducing the more temperate user to only those algorithms that are suitable for 

the habitual user.18 With respect to the addiction provision, § 1502 is not sufficiently 
tailored.                                                                 

18  It  is  possible  that  some  algorithms—especially  purely  or  primarily  time-tracking 
engagement-based algorithms like TikTok’s—could be prohibited with minimal burden on 
the more temperate user, who could instead access the same content of interest by 
   Act 901 prohibits a substantial amount of protected speech relative to its plainly 
legitimate sweep. Because NetChoice is likely to succeed on its facial challenge, the 
Court does not consider Defendants’ arguments regarding NetChoice’s ability to bring as-
applied challenges on behalf of its members.                              

                     2.  Void for Vagueness                             
   NetChoice also challenges Act 901 on the ground that it is so vague it violates due 
process.                                                                  
   It is a basic principle of due process that an enactment is void for vagueness 
   if  its  prohibitions  are  not  clearly  defined.  Vague  laws  offend  several 
   important  values.  First,  because  we assume  that  man  is  free to  steer 
   between lawful and unlawful conduct, we insist that laws give the person of 
   ordinary intelligence a reasonable opportunity to know what is prohibited, 
   so that he may act accordingly. Vague laws may trap the innocent by not 
   providing fair warning. Second, if arbitrary and discriminatory enforcement 
   is to be prevented, laws must provide explicit standards for those who apply 
   them.                                                                
Grayned v. City of Rockford, 

408 U.S. 104, 108

 (1972).                    
   “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).  “[E]conomic  regulation  is  subject  to  a  less  strict  vagueness  test”  as  are 
“enactments  with  civil  rather  than  criminal  penalties  because  the  consequences  of 
imprecision are qualitatively less severe.” 

Id.

 at 498–99. “Finally, perhaps the most 

following specific users or topic. Some algorithmic features, like mixing in content the 
algorithm  identifies  as  less  interesting  to  maintain  the  intermittent  variable  reward 
schedule, could also be prohibited without burdening users’ access to speech, although 
such prohibitions may burden platforms’ speech to the extent the less interesting content 
reflects platforms’  editorial  preferences. And  requiring  that  users opt  in  to addictive 
features, rather than forbidding them altogether, would also be less burdensome on users’ 
speech.                                                                   
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

.                                                

   Act 901 must meet this more stringent vagueness test because it both permits 
criminal penalties, see 

Ark. Code Ann. § 4-88-103

, and interferes with the right of free 
speech, see infra section III.B.1. “When speech is involved, rigorous adherence to those 
requirements is necessary to ensure that ambiguity does not chill protected speech.” FCC 
v.  Fox  Television  Stations,  Inc.,  

567 U.S. 239

,  253–54  (2012).  Indefinite  statutes 
“abut[ting] upon sensitive areas of basic First Amendment freedoms” may force the 
entities regulated “to ‘steer far wider of the unlawful zone’ than if the boundaries of the 
forbidden areas were clearly marked.” Baggett v. Bullitt, 

377 U.S. 360, 372

 (1964) (quoting 
Speiser v. Randall, 

357 U.S. 513, 526

 (1958)). “Free speech may not be so inhibited.” 

Id.

  
   Section  1502  imposes  liability  when  a  platform  uses  a  “design  algorithm,  or 

feature” that it “knows, or should know through the exercise of reasonable care, causes 
a user to: (1) Purchase a controlled substance; (2) Develop an eating disorder; (3) Commit 
or attempt to commit suicide; or (4) Develop or sustain an addiction to the social media 
platform.”                                                                
   A law may not subject the exercise of a constitutional right (like speech) to an 
unascertainable standard of conduct. The Supreme Court has therefore consistently 
struck down laws that restricted otherwise protected speech based solely on its impact 
on the feelings and conduct of others. For example in Coates v. City of Cincinnati, 

402 U.S. 611

 (1971), the Supreme Court struck down an ordinance “mak[ing] it a criminal 
offense for ‘three or more persons to assemble on any of the sidewalks and there conduct 
themselves in a manner annoying to persons passing by.” 

Id.

 (cleaned up). The Court 
noted that “[t]he word ‘annoying’ is a widely used and well understood word; it is not 
necessary  to  guess  its  meaning.”  

Id. at 612

.  But  the  ordinance  was  nonetheless 

unconstitutionally vague because                                          
   it subjects the exercise of the right of assembly to an unascertainable 
   standard . . . . Conduct that annoys some people does not annoy others. 
   Thus, the ordinance is vague, not in the sense that it requires a person to 
   conform  his  conduct  to  an  imprecise  but  comprehensible  normative 
   standard, but rather in the sense that no standard of conduct is specified at 
   all.                                                                 

Id. at 614

.                                                               
   Similarly, the problem with § 1502 is not so much that its prohibited results are 
vague, but that it fails to specify a standard of conduct to which platforms can conform 
and its violation entirely depends upon the sensitivities of some unspecified user and a 
judge or jury’s determination about what the platform “should have known” about those 
sensitivities. Such a law is unconstitutionally vague. See also Winters v. New York, 

333 U.S. 507, 519

 (1948) (holding invalid law which “propose[d] to punish the printing and 
circulation of publications that courts or juries may think influence generally persons to 
commit crime of violence against the person”).                            
   Defendants assert that any uncertainty in the Act’s proscription is ameliorated by 
the Act’s  knowledge  requirements.  (Doc.  36,  p.  24).  But  §  1502  does  not  have  a 
knowledge requirement; it has a “knows, or should have known through the exercise of 
reasonable  care”  requirement.19  “[S]hould  have  known  through  the  exercise  of 

19 It is true that criminal penalties are limited to knowing and willful violations, 

Ark. Code Ann. § 4-88-103

, but civil enforcement actions are not, 

id.

 § 104.        
reasonable care” is an objective negligence standard. Counterman v. Colorado, 

600 U.S. 66

, 79 n.5 (2023). In the sensitive First Amendment context, objective standards like this 
one do not tend to decrease the threat posed by vague laws. Cf. 

id. at 78

 (“An objective 
standard, turning only on how reasonable observers would construe a statement in 

context, would make people give threats ‘a wide berth.’” (citation omitted)); 

id.

 at 88–89 
(Sotomayor, J., concurring in part and concurring in the judgment) (noting potential for 
bias  in  a  jury’s  determination  of  what  constitutes  a  threat).  There  is  no  narrowing 
construction the Court can give to § 1502 that would be consistent with its text and would 
render it constitutional—Defendants don’t even bother to suggest one. (Doc. 36, pp. 24–
25. Section 1502 is likely void for vagueness.                            
   Section 1503, on the other hand, does have a subjective mens rea requirement, 
knowing and willful. Under Arkansas law, willfulness generally requires something more 
than mere knowledge of the act itself. Instead, a person willfully violates a law when they 
knowingly act or fail to act with knowledge or in conscious disregard of the risks or 

wrongfulness of that act. Sw. Bell Tel. Co. v. Ark. Pub. Serv. Comm'n, 

68 Ark. App. 148

, 
157–58 (1999). First Amendment issues aside, § 1503(a) does not require platforms to 
engage in the kind of speculative predictive judgments about what content is likely to 
cause a prohibited result in a user; it applies to specific conduct and content (hosting, 
promoting, sharing, or otherwise facilitating the immediate connection between a user 
and online content promoting, or otherwise advancing, self-harm or suicide); and its mens 
rea  provision  does,  as  Defendants  argue, reduce the  threat  of vagueness. Section 
1503(a) is likely not void for vagueness.                                 
                    3.  Section 230 Preemption                          
   Finally,  NetChoice  argues  that  Act  901  is  preempted  by  §  230  of  the 
Communications Decency Act, 

47 U.S.C. § 230

. Section 230 provides that “[n]o provider 
or user of an interactive computer service shall be treated as the publisher or speaker of 
any information provided by another information content provider.” 

Id.

 § 230(c)(1). An 

“interactive computer service” is “any information service, system, or access software 
provider that provides or enables computer access by multiple users to a computer server, 
including  specifically  a  service  or  system  that  provides  access  to  the  Internet.”  Id. 
§ 230(f)(2). NetChoice’s members are providers of interactive computer services. An 
“information content provider” is “any person or entity that is responsible, in whole or in 
part, for the creation or development of information provided through the Internet or any 
other interactive computer service.” Id. § 230(f)(3). Section 230 expressly preempts 
contrary state laws: “No cause of action may be brought and no liability may be imposed 
under any State or local law that is inconsistent with this section.” Id. § 230(e)(3). 

   Section 230 “immunizes providers of interactive computer services against liability 
arising from content created by third parties.” E. Coast Test Prep LLC v. Allnurses.com, 
Inc., 

971 F.3d 747, 752

 (8th Cir. 2020) (quoting Fair Hous. Council v. Roommates.com, 
LLC, 

521 F.3d 1157, 1162

 (9th Cir. 2008) (en banc) (footnote omitted)). “Congress thus 
established a general rule that providers of interactive computer services are liable only 
for speech that is properly attributable to them.” Johnson v. Arden, 

614 F.3d 785, 791

 (8th 
Cir. 2010) (quoting Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 

591 F.3d 250, 254

 (4th Cir. 2009)).                                                     
   When is a third party’s speech properly attributable to the interactive computer 
service on which it is posted? Well, it’s hard to say. See Gonzalez v. Google LLC, 

598 U.S. 617

 (2023). Defendants assert that platforms can be held liable whenever they 
engage in their own expressive activity, see Doc. 36, p. 9 (citing Anderson v. TikTok, Inc., 

116 F.4th 180, 183

 (3d Cir. 2024)), which, under the Supreme Court’s decision in Moody, 
would permit liability for platforms’ editorial decisions, see 

603 U.S. at 717

. 

   This Court respectfully disagrees with this argument and the Third Circuit decision 
on which it relies. This argument “presuppose[s] that editorial decisions cannot be both 
an expression of a publisher's point of view (protected under the First Amendment) and a 
publication  of  a  third-party's  content  (protected  under  Section  230).”  Doe  (K.B.)  v. 
Backpage.com, LLC, 

768 F. Supp. 3d 1057

, 1063 (N.D. Cal. 2025). But “the undisputed 
core of Section 230 immunity protects a website's moderation decisions, in its role as a 
‘publisher,’ about which third-party content to remove and which to permit”—decisions 
which also receive First Amendment protection. Id.; § 230(b)(4)(“It is the policy of the 
United States . . . to remove disincentives for the development and utilization of blocking 
and filtering technologies . . . .”); Moody, 

603 U.S. at 718

. Immunizing platforms from 

being treated as publishers only when they are not acting like publishers would nullify 
Section 230 and contradict its plain text.                                
   NetChoice, on the other hand, asserts that “[a]ll of Act 901’s liability-creating 
provisions . . . impermissibly make[ ] online services ‘liable for information originating with 
third-party users of the service.’” (Doc. 24, pp. 24–25 (quoting Arden, 

614 F.3d at 792

). 
But this argument also goes too far. Outside the First Amendment context, a facial 
challenge can succeed only if the challenger “establish[es] that no set of circumstances 
exists under which the Act would be valid.” United States v. Salerno, 

481 U.S. 739, 745

 
(1987); see Anderson v. Edwards, 

514 U.S. 143

, 155 n.6 (1995) (applying Salerno to 
facial preemption challenge).                                             
   NetChoice is not likely to succeed on its facial preemption challenge because 
some  applications  of  Act  901  are  consistent  with  Section  230.  In  some  potential 

applications, e.g., designs that make it difficult to delete one’s account, liability is not 
premised on a platform’s editorial decisions about third-party content at all. In others, e.g., 
appearance-altering filters, Snapchat streaks, the platform’s own posts, the platform itself 
is  acting  as  an  information  content  provider,  and  Section  230  does  not  immunize 
information  content  providers  from  liability  for  their  own  content.  In  re  Soc.  Media 
Adolescent Addiction, 702 F. Supp. 3d at 830; see Lemmon v. Snap, Inc., 

995 F.3d 1085

 
(9th Cir. 2021). As such, the Court cannot conclude that Act 901 is preempted by Section 
230 in all its applications.                                              
                      C.  Irreparable Harm                              
   “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)). Because NetChoice has 
shown that it is likely to prevail on its First Amendment claim, its members are likely to 
suffer irreparable harm if Act 901 goes into effect.                      
             D.  Balance of the Equities and the Public Interest 
    Enjoining  enforcement of a  duly enacted  statute  does  harm  the  government— 
“[uJnless that statute is unconstitutional.” Abbott v. Perez, 

585 U.S. 579

, 602-03 & n.17 
(2018).  “[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). 
Where, as here, the plaintiff has shown a  likely First Amendment violation, any harm to 
the government posed by a preliminary injunction “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). 
                            IV.  CONCLUSION 
    For  these  reasons,  NetChoice’s  Motion  for  Preliminary  Injunction  (Doc.  23)  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  901  for which  they  have 
enforcement  authority  against  NetChoice’s  members,  pending  final  disposition  of the 
issues on the merits. 
    IT IS SO ORDERED on this 15" day of December, 2025. 

                                  CHIEF UNITED STATES DISTRICT JUDGE 

                                   32