• by Wendy Davis , over 1 hour ago

The tech industry group NetChoice plans to ask the Supreme Court to strike down an Ohio law that prohibits some social platforms from allowing minors under 16 to create accounts without parental permission, the organization disclosed in papers filed Tuesday with the 6th Circuit Court of Appeals.

A panel of the 6th Circuit upheld the law in a 2-1 decision, with Circuit Judge Eric Clay opining that the statute's parental consent requirement is constitutional because it imposes only a "marginal burden" on speech. After the appellate court finalizes that ruling by issuing a "mandate," Ohio will be able to enforce the statute's restrictions.

NetChoice -- which counts large companies including Meta, TikTok and Google as members -- on Tuesday asked the 6th Circuit to delay finalization until the Supreme Court decides whether to review Ohio's Parental Notification By Social Media Operators Act (HB33).

"If HB33 goes into effect, hundreds of thousands of minors in Ohio will lose access overnight to some of the most important mediums for engaging in protected First Amendment activity," NetChoice writes in its new request. "The Court should not allow such a massive imposition on First Amendment rights to come to pass in Ohio before the Supreme Court has an opportunity to consider whether to weigh in."

The group writes that the Supreme Court "has routinely struck down government efforts to protect minors for purportedly harmful speech on new forms of media -- including by requiring minors to obtain parental consent before accessing such speech."

The organization goes on to note that the Supreme Court in 2011 invalidated a California law that would have prohibited the sale of violent video games to minors, without parental consent.

Ohio's law, passed in 2023, prohibits some web services with social functionality from allowing minors under 16 to create accounts without parental permission.

The statute generally covers operators of sites with social features (such as allowing users to create profiles and interact), and 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.

NetChoice sued to block the statute, arguing that it was unconstitutional for several reasons -- including that it restricts minors' First Amendment right to express themselves and access speech, and restricts social platforms' constitutional right to disseminate speech.

The organization also said the law was unconstitutionally vague. For instance, NetChoice argued, although the law exempted "established and widely recognized media outlets," it didn't define those terms.

U.S. District Court Judge Algenon Marbley sided with NetChoice and blocked enforcement. He said in a written opinion that the law was "troublingly vague,” and its restrictions didn't appear tailored to the goal of protecting minors from the potential harms of social media.

Ohio Attorney General David Yost appealed to the 6th Circuit, where he argued both that NetChoice wasn't in a position to assert that the law violated minors' rights, and that the parental-consent provisions merely restrict minors' ability to enter into contracts with social platforms.

Clay and Circuit Judge Alice Batchelder both voted to allow enforcement, although for different reasons.

While both judges said NetChoice wasn't in a position to argue that the law violated minors' rights, they wrote separate opinions regarding whether the law violated NetChoice members' First Amendment rights.

Clay said in the lead opinion that the law's parental-consent mandate "constitutes a marginal burden that 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."

Batchelder essentially said in a separate opinion that NetChoice 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.

Judge Kevin Ritz dissented, writing that he believes NetChoice is able to assert the First Amendment rights of its members' teen users, and that the law is unconstitutional.

NetChoice argues in its request to delay the mandate that there is a "reasonable probability" the Supreme Court will agree to take the case, especially given that Ohio isn't the only state to recently pass laws restricting teens' use of social media.

Other states with comparable statutes include Arkansas, Florida, Georgia, Louisiana, Nebraska, Mississippi, South Carolina, Utah, Texas and Tennessee.

NetChoice and others have challenged many of those laws, and most district court judges have blocked them. But states have appealed and at least two other federal appellate courts -- the 5th Circuit and 11th Circuit -- lifted blocks on the restrictions in Mississippi and Florida.

"Given the slew of state laws restricting minors from accessing such websites, and the disagreement among jurists around the country about whether and in what circumstances such efforts are consistent with the First Amendment, it is inevitable that the Supreme Court will need to step in to provide a uniform answer," the group writes.