Court Preliminarily Enjoins Ohio’s Law Requiring Parental Consent for Children’s Social Media Usage–NetChoice v. Yost

[I blogged the Supreme Court oral arguments in the NetChoice cases yesterday. That decision could have significant implications for this case as well as all other First Amendment challenges of states’ efforts to censor social media.]

I previously blogged the TRO. Now, with a little more time to complete its analysis, the court wrote a more thorough and refined opinion preliminarily enjoining Ohio’s law requiring parental consent for children’s usage of social media.

Some of the highlights from the opinion:

Protected Speech. AG Yost disingenuously argued that the law enhances parents’ control over their children’s contracts. The court easily brushes this aside, saying “this Court does not think that a law prohibiting minors from contracting to access to a plethora of protected speech can be reduced to a regulation of commercial conduct.” Instead, the court endorses that regulated social media enterprises are publishers:

the First Amendment implications of the Act come into focus when social media operators are thought of as publishers of opinion work—a newspaper limited to “Letters to the Editor,” or a publisher of a series of essays by different authors. The analogy is an imperfect one—social media operators are arguably less involved in the curation of their websites’ content than these traditional examples. But the comparison helps clarify that the Act regulates speech in multiple ways: (1) it regulates operators’ ability to publish and distribute speech to minors and speech by minors; and (2) it regulates minors’ ability to both produce speech and receive speech.

It’s exhausting that so many people have tried to vitiate the paradigm that social media services are publishers…and for what purpose? To enable greater government censorship of speech?

(I slightly disagree that the publisher analogy is imperfect or that social media services curate less. Social media services may not do as much pre-publication review of content as traditional publishers, but they still perform all of the same functions as publishers: they gather, organize, and disseminate content).

[The publisher analogy was very much on the Supreme Court justices’ minds in oral argument. Justice Kavanaugh signaled a clear understanding of the question, but the other justices (to varying degrees) did not. This is a topic where anything could happen.]

Having concluded that the law isn’t just a commercial regulation, the court determines the appropriate level of scrutiny. NetChoice noted how the law distinguishes between different online publishers. The court says that the law’s applicability to sites that “target children” and are “reasonably anticipated to be accessed by children” isn’t enough to make the law content-based. Nevertheless, the court embraces the website’s design choices as communicative aspects of its publication. Citing the overturned district court ruling in NetChoice v. Paxton, the court says that social media services are not:

mere conduits….The existence of functionalities allowing users to post, comment, and privately chat—in other words, to connect socially online—may very well be conveying a message about ‘the type of community the platform seeks to foster.’ The features that the Act singles out are inextricable from the content produced by those features. This Court therefore finds the Act’s distinction on the basis of these functionalities to be content based.

This gets to the heart of the lawsuits over UGC service’s “defective design” features. These lawsuits are absolutely about how the services gather, organize, and disseminate third-party content. Accordingly, they both trigger Section 230’s protections AND raise serious First Amendment concerns.

[The Supreme Court justices discussed this issue multiple times. Several justices kept asking what “message” the social media services were trying to communicate that was independent of the users’ content. NetChoice’s lawyer responded that they were communicating what kind of content is fit for their audiences.]

The court also picks apart the statutory exceptions for review websites and widely recognized media, both of which are also “content-based.” “For example, a product review website is excepted, but a book or film review website, is presumably not. The State is therefore favoring engagement with certain topics, to the exclusion of others.”

[This is the problem with defining “social media” or any other set of regulated Internet entities. It will inherently be over- or under-inclusive, or more likely both simultaneously. See also this piece on size-based statutory distinctions.]

Citing Brown v. EMA, the court also validates children’s speech rights because “laws that require parental consent for children to access constitutionally protected, non-obscene content, are subject to strict scrutiny.”

The law doesn’t survive strict scrutiny. The court evaluates the state’s purported interests:

Regarding minors’ contracts with services, “the Act is not narrowly tailored to protect minors against oppressive contracts. The Act regulates access to and dissemination of speech when it could instead seek to regulate the—arguably unconscionable—terms of service that these platforms require. The Act is also underinclusive with respect to this interest. For example, as NetChoice explains, a child can still agree to a contract with the New York Times without their parent’s consent, but not with Facebook.”
“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. 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. “
The Brown case rejected the state’s arguments about parental interests.

The court also finds void for vagueness, such as the “eyebrow-raising exception for ‘established’ and ‘widely recognized’ media outlets whose ‘primary purpose’ is to ‘report news and current events.’” “Such capacious and subjective language practically invites arbitrary application of the law.”

I presume it’s time for the state’s appeal, In the interim, the NetChoice SCOTUS cases may reshape the law…for better or worse…

Case Citation: NetChoice LLC v. Yost, 2024 WL 555904 (S.D. Ohio Feb. 12, 2024)

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