A federal judge has entered a preliminary injunction halting enforcement of a state statute requiring parental consent for children under the age of 16 to register or create an account on certain popular social media sites. In an action brought by an internet trade association, the court found that the parental notification statute violated the free speech and due process rights of both children and the operators of social media sites. ABA Litigation Leaders acknowledge the state’s interest in protecting minors from certain aspects of social media, but question the breadth of the statute intended to further that goal.
The Parental Notification by Social Media Operators act, Ohio Rev. Code § 1349.09(B)(1) requires the operators of popular social media sites such as Facebook and YouTube to obtain parental “verifiable consent” before allowing children under the age of 16 to create an account or access the sites. The act applies to sites that “target[] children” or are “reasonably anticipated to be accessed by children,” and which allow users to interact socially with others, create an online profile, populate a list of others with whom they may interact, and create and post content viewable by others such as chat rooms.
The act makes exceptions for sites where interaction is limited to reviewing or commenting on product reviews and comments on an “established and widely recognized media outlet.” Without the required parental consent, children under the age of 16 “shall” be denied access to the covered social media. The act contains a robust enforcement regime, including significant civil penalties.
NetChoice, a trade association representing many of the most popular social media platforms, brought an action in the U.S. District Court for the Southern District of Ohio on behalf of both its members and the children of Ohio seeking to halt enforcement of the act based on violations of free speech under the First Amendment and due process under the Fourteenth Amendment.
The court found that NetChoice has associational standing under which it can satisfy the requirement of injury-in-fact by demonstrating injury to its members. The court found the requirement satisfied here by the significant compliance costs imposed by the act, made worse by the uncertainty created by the vague definitions of covered social media.
On the issue of prudential standing, the right to bring the specific claims asserted, Ohio conceded as to the members of NetChoice but contested its right to bring claims on behalf of children. The court relied on the U.S. Supreme Court case of Virginia v. American Booksellers Assoc., Inc. for the proposition that prudential standing may be based on a “judicial prediction or assumption” that the very existence of the challenged law may have a chilling effect on would-be speakers or consumers of speech.
Ohio argued that the act simply regulates commercial activity and the right to contract, but does not regulate speech. The court rejected this argument, ruling that the act restricts the operators of social media from publishing speech to and from minors and restricts a minor’s ability to produce or receive speech. The court noted that there is no “contract exception” to free speech.
The court found that the act is content-based, requiring the state to identify a compelling interest and a narrowly tailored law to address it. The Ohio attorney general urged several compelling interests—protecting children from harms identified with social media such as mental health issues, sexual predation, and unfair contract terms. Leaving aside the determination of any compelling interests, the court based its ruling on the act not being narrowly drawn, calling it a “breathtakingly blunt instrument” to address social media concerns. The court concluded that the act restricts free speech in violation of the First Amendment and is void for vagueness under the Due Process Clause of the Fourteenth Amendment.
“Although the court sidestepped the issue, I think the Ohio attorney general did articulate a compelling interest in protecting children from some of the dangers of social media including reported mental health issues associated with infinite scrolling, excessive use, and sexual predation, and the act was an attempt to advance that interest,” notes Rebecca Sha, New Orleans, Co-Chair of the Litigation Section’s Minority Trial Lawyer Committee. “But I agree with the decision holding that the law is vague in ways that make it unduly difficult for operators of social media sites to comply and has a chilling effect on speech. The U.S. Surgeon General has proposed a more targeted and simple solution—placing warning ‘labels’ on all social media,” she adds.
“In the context of a First Amendment challenge, the Ohio attorney general was unable to frame the law as addressing commercial activity rather than speech or overcome the statute's vagueness as to who was subject to its restrictions,” states Michael D. Steger, New York, Co-Chair of the Section’s Solo & Small Firm Committee. “The court emphatically rejected the state’s posture that the statute merely addressed commercial contracts and not protected speech. I expect this court to permanently enjoin Ohio's ‘breathtakingly broad’ law.”
