Getty Images | Matt Cardy
A federal judge blocked an Ohio state law that would prevent minors from using social networks without parental consent, calling it a “troublingly vague” law that likely violates the First Amendment. Ohio’s “Parental Notification by Social Media Operators Act” affects websites including Facebook, X (formerly Twitter), and YouTube.
“Foreclosing minors under sixteen from accessing all content on websites that the Act purports to cover, absent affirmative parental consent, is a breathtakingly blunt instrument for reducing social media’s harm to children,” US District Judge Algenon Marbley wrote in an order issued Tuesday. “The approach is an untargeted one, as parents must only give one-time approval for the creation of an account, and parents and platforms are otherwise not required to protect against any of the specific dangers that social media might pose.”
While more in-depth arguments will be made later, Marbley called it “unlikely that the government will be able to show that the Act is narrowly tailored to any ends that it identifies.” Marbley, a judge in US District Court for the Southern District of Ohio, granted a motion for a temporary restraining order sought by tech-industry lobby group NetChoice. Marbley did not rule on NetChoice’s related motion for a preliminary injunction but scheduled a February 7 hearing on the injunction request.
The temporary restraining order was granted quickly, as NetChoice sued to block the law on January 5. The state law was due to take effect on January 15, but the temporary restraining order will preserve the status quo while the motion for preliminary injunction is considered. A preliminary injunction would prevent the law from being enforced while the case goes to trial. The law was proposed by Gov. Mike DeWine, a Republican, and approved by the state’s Republican-majority legislature last year.
NetChoice is separately challenging Florida and Texas state laws that regulate social networks in a First Amendment case that the US Supreme Court agreed to hear. The Supreme Court is holding oral arguments on the Florida and Texas laws on February 26.
Ohio law fails to define key terms
The Ohio law purports to apply to websites that target children or are “reasonably anticipated to be accessed by children.” This “expansive language” makes it hard to determine exactly which websites are affected, the judge wrote.
“The Act provides an eleven-factor list that the Attorney General or a court may use to determine if a website is indeed covered, which includes malleable and broad-ranging considerations like ‘[d]esign elements’ and ‘[l]anguage.’ All of the listed considerations are undefined,” Marbley wrote.
Moreover, the law has what Marbley called “an eyebrow-raising exception for ‘established’ and ‘widely recognized’ media outlets whose ‘primary purpose’ is to ‘report news and current events.'” Marbley wrote that the law “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.”
DeWine said he was disappointed by the court’s ruling “and hope[s] it will be lifted as the case further proceeds so these important protections for children can take effect.” Ohio Lt. Governor Jon Husted said that Big Tech companies “were included in the legislative process to make sure the law was clear and easy to implement” but “were disingenuous participants in the process and have no interest in protecting children.”
“The negative effects that social media sites and apps have on our children’s mental health have been well documented, and this law was one way to empower parents to have a role in their kids’ digital lives,” DeWine said.
In a statement praising the judge’s ruling, NetChoice said the Ohio law “violates constitutional rights and rips away a parent’s authority to care for their child as they find appropriate.”
Ohio Attorney General Dave Yost hasn’t submitted a written response to the NetChoice lawsuit yet, but the state made arguments during a conference on January 8. Ohio “seeks to cast the Act—and this case—as not about the First Amendment, but about the right to contract,” Marbley wrote. “At the Rule 65.1 conference, Defendant’s counsel explained that any effect that the Act has on First Amendment rights is incidental to its primary purpose, which is to require parental consent before minors under the age of sixteen enter into contracts with the operators to which the Act applies.”
