• by Wendy Davis  @wendyndavis, May 6, 2024

The tech industry group NetChoice is asking a federal judge to permanently block enforcement of an Ohio law that prohibits large social platforms from allowing minors under 16 to create accounts or access content, unless their parents consent.

U.S. District Court Judge Algenon Marbley in the Southern District of Ohio temporarily blocked enforcement earlier this year, writing that the law is “troublingly vague,” and that its prohibitions don't appear tailored to the goal of protecting minors from the potential harms of social media.

Late last week, NetChoice urged Marbley to issue a permanent injunction, arguing that the law would “trample minors’ First Amendment rights,” and is unconstitutionally vague.

The statute “violates both minors’ rights to access and engage in speech and covered websites’ right to disseminate speech,” NetChoice writes, adding that the Supreme Court previously struck down a California law that banned the sale of violent video games to minors, without parental consent. Justice Antonin Scalia said in that matter that the government does not have “a free-floating power to restrict the ideas to which children may be exposed.”

Ohio Attorney General Dave Yost counters that the law is merely an “economic regulation” that applies to websites that “pose unique risks” due to their designs.

“The Act simply does not implicate the First Amendment -- it limits covered operators’ ability to contract with minors absent parental consent,” he argues in papers filed Friday. “This is squarely within Ohio’s regulatory authority.”

The Social Media Operators Act, which would have taken effect January 15, prohibits some sites with social functionality -- including Instagram, Facebook, YouTube and Pinterest -- from allowing minors to create accounts or access content, without parental permission.

The law generally applies to operators of sites with social features (such as allowing people to create profiles and interact with each other) and are aimed at minors under 16 or “reasonably anticipated” to be accessed by such users. The measure exempts ecommerce sites that allow people to post reviews, and “established and widely recognized” media outlets that report news.

When Marbley blocked the law on a temporary basis, he said several provisions were vague, including the exemption for established and widely recognized news outlets.

He described that exception as “eyebrow-raising,” writing that the statute “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,” he wrote.

NetChoice argues that in addition to being vague, the exemptions violate the First Amendment because they hinge on the identity of the speakers -- in this case, web publishers.

For instance, the group writes, under the law “a covered minor user does not need consent to 'interact' with and comment on an article posted on 'established and widely recognized' media outlets like CNN, The New York Times, The Washington Post, but, absent parental permission, could not comment on that same article reposted on a covered website like Facebook.”

NetChoice and Yost are expected to respond to each other's arguments by June 3.

Other states including Arkansas, Utah, Texas and California have also recently passed laws that could affect teens' use of the internet.

A federal judge in Arkansas temporarily blocked a state statute requiring social platforms to verify users' ages and prohibiting teens under 18 from having social media accounts without parental permission, while a different federal judge in California blocked a law that would have required online companies likely to be accessed by users under 18 to prioritize their “best interests” and “well-being.”