Ohio Social Media Law Violates Minors’ Rights, Judge Says

NetChoice hailed Monday’s decision by U.S. District Judge Algenon Marbley for Southern Ohio in Columbus granting NetChoice’s motion for a preliminary injunction that on constitutional grounds blocks Ohio Attorney General Dave Yost (R) from enforcing the state’s Parental Notification by Social Media Operators Act. The judge previously granted NetChoice a temporary restraining order against the statute a week before it was to take effect Jan. 15 (see 2401090062).

NetChoice’s victory in Ohio “is the fourth ruling NetChoice has obtained, demonstrating that this law and others like it in California and Arkansas not only violate constitutional rights, but if enacted, would fail to achieve the state’s goal of protecting kids online,” said Chris Marchese, director of the NetChoice Litigation Center, in a statement Monday. “We look forward to seeing these laws permanently struck down and online speech and privacy fully protected,” he said. Yost’s office didn’t comment.

Marbley found that the Ohio statute implicates the First Amendment, "at least to some degree, and therefore, is not subject to the deferential rational basis standard of review,” said his opinion and order Monday (docket 2:24-cv-00047). AG Yost’s arguments aren’t “wholly without merit,” it added. Because speaker-based distinctions are subject to strict First Amendment scrutiny only if they’re also facially content-based, or content-based distinctions “in disguise,” the court must consider "whether the Act’s speaker-based provisions disfavor the messages that the operators publish, or simply the manner in which they transmit those messages," it said: “It is a close call.”

At this “early juncture,” Marbley shares the view of a district court in the Western District of Texas “that considered a regulation of major social media websites’ content-moderation practices,” said the opinion and order. Albeit in a different context, that court reasoned that, unlike broadband providers and telephone companies, social media platforms aren’t engaged in indiscriminate, neutral transmission of any and all users’ speech, it said.

The Ohio statute violates Ohioan minors’ rights, said the opinion and order. “Particularly relevant here” is the U.S. Supreme Court’s 2011 analysis in Brown v. Entertainment Merchants Association, which invalidated a California regulation prohibiting the sale of violent video games to minors, it said.

There, SCOTUS reasoned that even if the state can enforce parental prohibitions, it doesn’t follow that the state has the power to prevent children from hearing or saying anything without their parents’ prior consent, said the opinion and order. SCOTUS explained that such laws don’t enforce parental authority over children’s speech and religion but rather impose governmental authority, subject only to a parental veto, it said.

The Ohio social media statute “appears to be exactly that sort of law,” said the opinion and order. Like content-based regulations, “laws that require parental consent for children to access constitutionally protected, non-obscene content, are subject to strict scrutiny,” it said.

On whether NetChoice has standing to challenge the Ohio statute, Yost is “incorrect to suggest” that it can’t predicate its constitutional standing on “economic harm,” said the opinion and order. Appellate courts that have considered whether compliance costs confer standing have uniformly held that compliance costs associated with a regulatory regime satisfy the injury-in-fact requirement, it said.

This is true “even when the underlying claims are non-economic in nature,” said the opinion and order. Constitutional standing “pertains to whether a litigant can bring a lawsuit at all, not which claims it can bring,” it said. Many of NetChoice’s member organizations “would incur substantial compliance costs should the Act go into effect,” it said.

Each NetChoice member that believes it would be covered by the act “would need to develop a protocol for the processing of parental consent notifications in compliance with the Act,” said the opinion and order. Each otherwise faces the risk of civil liability “to the tune of thousands of dollars a day for each unauthorized minor using its site," it said. NetChoice argues that the economic risk “is particularly acute because the Act is vague,” it said.

A compliance cost injury alone is sufficient to confer constitutional standing, but NetChoice also argues that the act will violate its members’ First and 14th amendment rights, said the opinion and order. A plaintiff satisfies the injury-in-fact requirement when it alleges an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution, it said.