• by Wendy Davis , Yesterday

The tech industry group NetChoice on Thursday urged a federal appellate court to reconsider its "egregiously wrong" decision to uphold Ohio's Parental Notification By Social Media Operators Act, which limits teens' ability to use social-media platforms.

That law, HB33, prohibits some web services with social functionality from allowing minors under age 16 to create accounts without parental permission.

Last month, a panel of the 6th Circuit Court of Appeals upheld the statute by a 2-1 vote.

Circuit Judge Eric Clay wrote in the lead opinion that the law's parental consent mandate is only a "marginal burden" on speech, adding that the requirement "precisely targets the multi-faceted problem that Ohio has identified: Children’s unsupervised assent to terms and conditions for use of platforms that take advantage of and harm them."

Circuit Judge Kevin Ritz dissented, writing: "Although the websites the Act seeks to regulate may pose serious risks to children, these sites are also zones for constitutionally protected speech."

NetChoice, which counts large platforms including Meta, YouTube and TikTok as members, is now seeking a new hearing in front of the entire 6th Circuit.

"The panel decision is egregiously wrong and conflicts with decisions from this and other courts," NetChoice writes, noting that the Supreme Court in 2011 struck down a California law that would have prohibited the sale of violent video games to minors without parental consent.

"In a nation that values the First Amendment, the preferred approach is to let parents decide what constitutionally protected speech their children may access -- including by utilizing the many available tools to monitor their activities on the Internet," NetChoice argues. "Yet notwithstanding the wealth of tools available to help parents tailor and restrict their minors’ internet access, Ohio has taken it upon itself to decide what is appropriate for minors."

The organization adds that the law "restricts access to an exceedingly broad universe of protected speech, including on all manner of websites with no conceivable connection to Ohio’s purported concerns."

For instance, NetChoice argues, the law covers sites that are not typically considered large social media platforms, such as the book recommendation site Goodreads and blogging platform Dreamwidth. 

"The notion that such a radical incursion on First Amendment rights could possibly be the 'least restrictive means' of achieving Ohio’s professed interests beggars belief," NetChoice argues.

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

Earlier in the case, U.S. District Court Judge Algenon Marbley found the law unconstitutional and issued an injunction blocking enforcement.

Marbley said in a written ruling that the statute was "troublingly vague,” and its restrictions did not appear to be tailored to the goal of protecting minors from the potential harms of social media.

Ohio Attorney General David Yost appealed the injunction to the 6th Circuit, arguing that the parental-consent provisions merely restrict minors' ability to enter into contracts with social platforms.

He also contended that NetChoice was not in a position to argue that the law violated minors' First Amendment rights.

"The conflicts between social-media entities and children are too great to allow NetChoice to stand in children’s shoes," he argued.

Ohio is one of numerous states to pass laws attempting to regulate social media use by minors. Arkansas, Florida, Georgia, Louisiana, Nebraska, Mississippi, South Carolina, Utah, Texas and Tennessee are among the other states with comparable restrictions.

Most district court judges have blocked all or part of those measures, but state attorneys general have appealed.

The 6th Circuit is the third federal appellate court to side with state officials and allowed social-media restrictions to take effect Last year, the 5th Circuit and 11th Circuit allowed enforcement of laws in Mississippi and Florida.

The 6th Circuit has not yet indicated when it will rule on NetChoice's request for a new hearing.