• by Wendy Davis , Yesterday

In a defeat for the tech industry group NetChoice, a federal appeals court on Wednesday refused to reconsider its decision to uphold Ohio's Parental Notification By Social Media Operators Act, which limits teens' ability to use social-media platforms.

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

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

NetChoice, which counts large platforms including Meta, YouTube and TikTok, recently sought a new hearing in front of the entire 6th Circuit, arguing that the panel's decision was "egregiously wrong," and conflicted with a 2011 Supreme Court ruling striking 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 argued in its petition for a new hearing. "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 added that the law "restricts access to an exceedingly broad universe of protected speech," including sites that are not typically considered large social media platforms, such as the book recommendation site Goodreads.

The appellate judges said in Wednesday's order that they were rejecting NetChoice's petition because they already "fully considered" the group's arguments. Circuit Judge Kevin Ritz, who dissented from the decision to uphold the law, would have granted the group's request for a new hearing.

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

Marbley said 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 appealed that injunction to the 6th Circuit. Among other arguments, the state said the parental-consent provisions merely restrict minors' ability to enter into contracts with social platforms.

The two 6th Circuit judges who voted to uphold the law issued separate opinions.

Circuit Judge Eric Clay wrote that the statute'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 Alice Batchelder essentially said she rejected NetChoice's challenge because the group sought to strike down the entire statute, but failed to prove that every application of the law would violate its members' rights.

"From the record below, I cannot assess the full scope of NetChoice’s members’ services covered by The Act, much less the scope of services offered by nonparties," she wrote, adding that some services, such as direct messaging "may not warrant the same kind of constitutional protection" as others, such as curating a social media feed.

Both Clay and Batchelder agreed that NetChoice wasn't the right party to argue that the law violated minors' rights.

Ritz wrote in his dissent that social media sites "may pose serious risks to children," but "are also zones for constitutionally protected speech."

It's not yet clear whether NetChoice plans to ask the Supreme Court to block the law.