A federal judge blocked an Ohio state law that would prevent minors from using social networks without parental consent, calling it a “troublingly vague” law that likely violates the First Amendment. Ohio’s “Parental Notification by Social Media Operators Act” affects websites including Facebook, X (formerly Twitter), and YouTube.
“Foreclosing minors under sixteen from accessing all content on websites that the Act purports to cover, absent affirmative parental consent, is a breathtakingly blunt instrument for reducing social media’s harm to children,” US District Judge Algenon Marbley wrote in an order issued Tuesday. “The approach is an untargeted one, as parents must only give one-time approval for the creation of an account, and parents and platforms are otherwise not required to protect against any of the specific dangers that social media might pose.”
While more in-depth arguments will be made later, Marbley called it “unlikely that the government will be able to show that the Act is narrowly tailored to any ends that it identifies.” Marbley, a judge in US District Court for the Southern District of Ohio, granted a motion for a temporary restraining order sought by tech-industry lobby group NetChoice. Marbley did not rule on NetChoice’s related motion for a preliminary injunction but scheduled a February 7 hearing on the injunction request.
The temporary restraining order was granted quickly, as NetChoice sued to block the law on January 5. The state law was due to take effect on January 15, but the temporary restraining order will preserve the status quo while the motion for preliminary injunction is considered. A preliminary injunction would prevent the law from being enforced while the case goes to trial. The law was proposed by Gov. Mike DeWine, a Republican, and approved by the state’s Republican-majority legislature last year.
NetChoice is separately challenging Florida and Texas state laws that regulate social networks in a First Amendment case that the US Supreme Court agreed to hear. The Supreme Court is holding oral arguments on the Florida and Texas laws on February 26.
Ohio law fails to define key terms
The Ohio law purports to apply to websites that target children or are “reasonably anticipated to be accessed by children.” This “expansive language” makes it hard to determine exactly which websites are affected, the judge wrote.
“The Act provides an eleven-factor list that the Attorney General or a court may use to determine if a website is indeed covered, which includes malleable and broad-ranging considerations like ‘[d]esign elements’ and ‘[l]anguage.’ All of the listed considerations are undefined,” Marbley wrote.
Moreover, the law has what Marbley called “an eyebrow-raising exception for ‘established’ and ‘widely recognized’ media outlets whose ‘primary purpose’ is to ‘report news and current events.'” Marbley wrote that the law “provides no guardrails or signposts for determining which media outlets are ‘established’ and ‘widely recognized.’ Such capacious and subjective language practically invites arbitrary application of the law.”
DeWine said he was disappointed by the court’s ruling “and hope[s] it will be lifted as the case further proceeds so these important protections for children can take effect.” Ohio Lt. Governor Jon Husted said that Big Tech companies “were included in the legislative process to make sure the law was clear and easy to implement” but “were disingenuous participants in the process and have no interest in protecting children.”
“The negative effects that social media sites and apps have on our children’s mental health have been well documented, and this law was one way to empower parents to have a role in their kids’ digital lives,” DeWine said.
In a statement praising the judge’s ruling, NetChoice said the Ohio law “violates constitutional rights and rips away a parent’s authority to care for their child as they find appropriate.”
Ohio Attorney General Dave Yost hasn’t submitted a written response to the NetChoice lawsuit yet, but the state made arguments during a conference on January 8. Ohio “seeks to cast the Act—and this case—as not about the First Amendment, but about the right to contract,” Marbley wrote. “At the Rule 65.1 conference, Defendant’s counsel explained that any effect that the Act has on First Amendment rights is incidental to its primary purpose, which is to require parental consent before minors under the age of sixteen enter into contracts with the operators to which the Act applies.”
Content-based laws face strict scrutiny
If the court accepted the state’s “framing of the Act as a content-neutral regulation that only incidentally burdens speech,” it would apply the standard of “intermediate scrutiny” under which a “content-neutral regulation will be sustained under 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,” Marbley wrote.
But if the court determines that the act is content-based, a higher standard would apply. “Content-based restrictions on speech are presumptively unconstitutional and must satisfy strict scrutiny to survive,” Marbley wrote. NetChoice argues that the law is content-based “because it targets some sorts of websites while exempting others,” the judge wrote in a summary of the group’s argument.
“Specifically, the Act only purports to govern websites that are targeted at children, or reasonably anticipated to be accessed by children,” Marbley wrote. “The Act excludes from coverage, however, websites where interaction between users is ‘incidental to content posted by an established and widely recognized media outlet, the primary purpose of which is to report news and current events.'”
NetChoice says this means “a minor might be able to access and comment on an article published on the New York Times’ website, but not the same article on Facebook.” Similarly, the law has an exemption for websites where interaction is limited to reviews of “products for sale” but does not exempt reviews of services or art. The tech group “also argues that the Act infringes on minors’ rights to both access and produce First Amendment protected speech,” Marbley wrote.
“On its face, the Act distinguishes between different websites—exempting some and targeting others—and therefore appears speaker-based… based on the text of the Act itself, this Court suspects that NetChoice will succeed in showing that the Act is geared toward requiring parental consent before minors can access the sort of content that tends to appear on the websites that the Act seeks to govern,” Marbley wrote. “The Act’s exemption of ‘widely recognized’ ‘media outlets’ and product review sites bolsters this conclusion.”
Ohio must show compelling interest
Ohio needs to show, among other things, that there is a compelling governmental interest to justify the law, Marbley wrote. The sides disagree on what the potential governmental interest would be in this case.
“Certainly, the protection of children is a laudable aim. But whether it is a compelling one—or even an important one—may turn on how the government chooses to frame that interest going forward,” the judge wrote. “Recall that NetChoice casts the potential government interest in the Act as protection of minors from harmful speech and content, whereas Defendant Yost argues that the Act is targeted at preventing children from contracting with social media companies without parental consent.”
Even if the state has a compelling interest, the law still has to be tailored to meet those legitimate ends. Marbley says the state will have a difficult time arguing that the law is properly tailored.
“And even if the government can show that the interest in question is indeed protecting minors from entering into contracts, the Act’s inclusions and exemptions are not tailored to that end,” he wrote. “For example, the Act would arguably permit a minor to create an account, subject to contract, with the New York Times, raising similar concerns to the ones involved in contract formation with Facebook, which the Act appears to target. In other words, the Act appears, at this juncture, to be both underinclusive and overinclusive, irrespective of the government interest at stake.”
Marbley also agrees with NetChoice’s argument that the law’s impact on minors’ First Amendment rights is subject to strict scrutiny. The judge wrote:
Particularly relevant here is the Supreme Court’s holding that even if “the state has the power to enforce parental prohibitions”—for example, enforcing a parent’s decision to forbid their child to attend an event—”it does not follow that the state has the power to prevent children from hearing or saying anything without their parents’ prior consent.” As the Court explained, “[s]uch laws do not enforce parental authority over children’s speech and religion; they impose governmental authority, subject only to a parental veto.” The Act appears to be exactly that sort of law. And like other content-based regulations, these sorts of laws are subject to strict scrutiny.
The Supreme Court ruling cited by Marbley came in Brown v. Entertainment Merchants Association, a 2011 decision that struck down a California law restricting the sale of violent video games to minors.