• by Wendy Davis  @wendyndavis, January 30, 2024

The tech industry is pressing a federal judge to block an Ohio law that would force some large tech platforms, including Instagram, Facebook, Pinterest and YouTube, to ban minors under 16, without parental consent.

U.S. District Court Judge Algenon Marbley in the Southern District of Ohio previously issued an emergency order barring enforcement of the law until at least February 8.

The industry group NetChoice, which is suing to invalidate the law on First Amendment grounds, is now asking Marbley to extend that ban while the case proceeds.

The Ohio Parental Notification By Social Media Operators Act, which was originally slated to take effect in early January, prohibits some but not all sites with social functionality from allowing minors to create accounts or access content, without parental permission. The law generally applies to sites that have social features (such as allowing users to create profiles and interact) and are likely to be accessed by minors under 16, but excludes ecommerce sites that allow people to post reviews, and “established and widely recognized” media outlets that report news.

When Marbley issued a temporary restraining restraining order, he called the law “troublingly vague,” and said its prohibitions weren't tailored to the goal of protecting minors from social media's potential harms.

Ohio Attorney General Dave Yost recently asked Marbley to lift the block, arguing that the law doesn't regulate speech but instead restricts “contracts” -- meaning minors' ability to agree to terms of service, register with online services and create usernames.

“The state’s purpose -- to prohibit covered operators from contracting with minors -- is content neutral,” Yost's office wrote in papers filed earlier this month.

His office added that parental consent is “traditionally required” before minors can “engage in activities that, by their nature, pose health and privacy risks” -- such as getting tattoos or using tanning beds.

NetChoice counters in its new papers that getting a tattoo or using a tanning bed is “worlds apart” from accessing speech on social media.

“Laws regulating tattoos (injecting permanent ink into the skin), piercings, and tanning target health consequences of conduct regardless of content,” NetChoice writes in papers filed late last week. “The Act here directly regulates broad swaths of speech because of its content.”

The group argues that the decision to exempt news publishers and certain other companies from the parental consent requirement shows that lawmakers were more concerned with regulating speech than contracts.

“To create an account for the New York Times online, a minor must agree to detailed terms of sale, terms of service, and a privacy policy,” NetChoice writes. “Yet the Act leaves all those 'contracts' and 'terms of service' -- and many more -- unregulated.”

Marbley is expected to hold a hearing on February 8.