Judge Grants Preliminary Injunction Blocking Ohio’s Unconstitutional ‘Parental Consent’ Social Media Law
Last month we wrote about Netchoice suing Ohio over its Parental Notification by Social Media Act," in which I filed a declaration highlighting how problematic the law would be for a site like Techdirt. By the time we'd finished the article about the lawsuit, a federal judge had already granted a temporary injunction, blocking the law from going into effect. The law was incredibly problematic for many reasons, but like some other laws, the whole idea was to make websites get parental consent" for kids using social media.
As the original complaint noted, this law violated the constitution in multiple ways:
First, the Act imposes blanket parental-consent requirements for minors to access and engage in all manner of protected speech across a wide swath of websites. Courts have not hesitated to invalidate similar efforts to limit the speech by and to minors. E.g., Brown, 564 U.S. at 799 (rejecting parental-consent requirements for violent video games). Indeed, the Supreme Court has rejected the idea that the government has the power to prevent children from hearing or saying anything without their parents' prior consent."....
Second, the First Amendment problems are heightened here because the Act is unconstitutionally both content-based and speaker-based and baldly discriminates among online operators based on the type of speech they publish. For example, the Act exempts established and widely recognized media outlet[s], the primary purpose of which is to report news and current events." Ohio Rev. Code 1349.09(O)(2). Yet it regulates media outlets that are not established" or widely recognized" and mixed-purpose outlets that cover news and current events in addition to other types of media....
Third, the Act is unconstitutionally vague. Its central coverage provision applies to websites that target[] children, or [are] reasonably anticipated to be accessed by children." Ohio Rev. Code 1349.09(B)(1). Websites have no way to know what this means.
And now the judge overseeing the case, Judge Algenon Marbley, has agreed. This might not have been a surprise, given the quickness of the Temporary Restraining Order, but the reasoning is laid out in more detail in granting the preliminary injunction effectively killing the law as unconstitutional.
Ohio, in its response, tried to claim that this law had nothing to do with speech, but was about the right to contract." This is something we've seen in many of these laws. The states argue this isn't about speech, it's about privacy," or it's about data," or it's about contract," or it's about safety." None of these excuses should fly, and thankfully, they don't here either.
Despite the challenges of applying the Constitution to ever-advancing technology," Brown v. Ent. Merchants Ass'n, 564 U.S. 786, 790 (2011), 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. And as NetChoice points out, this Court is unaware of a contract exception" to the First Amendment. Indeed, neither party references any such authority. Like many of NetChoice's member organizations, a publisher stands to profit from engagement with consumers. That an entity seeks financial benefit from its speech does not vitiate its First Amendment rights.
There is a very long (and detailed and thoughtful) discussion regarding what standard of scrutiny should be applied to the law, which I won't cover in detail here, but it's a fun read if you're into that sorta thing.
The judge picks up on something I focused on in my declaration: the law includes a carveout for widely recognized" media outlets. I questioned (1) how one could know whether or not one was a widely recognized media outlet and (2) why only widely recognized media outlets deserved such an exception. The judge also seems to realize this is problematic.
The exceptions to the Act for product review websites and widely recognized" media outlets, however, are easy to categorize as content based. It is noteworthy that the exceptions for media outlets and product review sites do, in part, define exempted speakers by the fact that interaction between users is limited to" public comments. 1349.09(O). Presumably, the public nature of comments-as opposed to private chats-reduces the predation risk to minors that Defendant argues covered operators pose. (See ECF No. 28-4 at 4). Even assuming, however, that requiring parental approval before a minor can engage in private user interaction is one of the Act's goals-and a constitutionally sound one-the exceptions as written still distinguish between the subset of websites without private chat features based on their content. For example, a product review website is excepted, but a book or film review website, is presumably not. (ECF No. 29 at 14). The State is therefore favoring engagement with certain topics, to the exclusion of others. That is plainly a content-based exception deserving of strict scrutiny.
The court (correctly) leans on the Supreme Court's important 2011 ruling in Brown v. Entertainment Merchants Association, which tossed out California's law mandating video game ratings to protect the children." That ruling made clear that kids have First Amendment rights too.
Particularly relevant here is the Supreme Court's analysis in Brown v. Ent. Merchs. Ass'n, which invalidated a California regulation prohibiting the sale of violent video games to minors. There, the Supreme Court reasoned that even if the state has the power to enforce parental prohibitions"-for example, enforcing a parent's decision to forbid their child to attend an event- it does not follow that the state has the power to prevent children from hearing or saying anything without their parents' prior consent." Id. at 795 n.3. As the Court explained, [s]uch laws do not enforce parental authority over children's speech and religion; they impose governmental authority, subject only to a parental veto." Id. The Act appears to be exactly that sort of law. And like content-based regulations, laws that require parental consent for children to access constitutionally protected, non-obscene content, are subject to strict scrutiny.
Having established that strict scrutiny is the right standard, the analysis is pretty straightforward. The law simply does not come close to meeting the necessary bar. The law is not narrowly tailored:
Conclusively, though, 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. See Brown, 564 U.S. at 802 (concluding that legislation preventing minors from buying violent video games was seriously underinclusive" because the Legislature is perfectly willing to leave this dangerous, mind-altering material in the hands of children so long as one parent . . . says it's OK. . . . That is not how one addresses a serious social problem.").
And finally, with respect to the rights of parents, Attorney General Yost fails to distinguish the State's purported interest from an analogous-and rejected-state interest in Brown. When the State of California tried a similar argument-that the legislation prohibiting minors from purchasing violent video games was justified in aid of parental authority"-the Supreme Court noted that it doubted punishing third parties for conveying protected speech to children just in case their parents disapprove of that speech is a proper governmental means of aiding parental authority." Brown, 564 U.S. at 802. More conclusively, however, the Court detailed a series of preexisting protections to help parents-just as there are here-such that filling the remaining modest gap in concerned parents' control can hardly be a compelling state interest." Id. at 803. And the legislation was also overinclusive, in that it enforced a governmental speech restriction, subject to parental veto, as opposed to protecting only the interests of genuinely concerned parents. Id. at 804. That is, some parents simply may not care. Id. The same is true here.
Also, the judge finds that the law is likely unconstitutionally vague, such as in the description of widely recognized" media that concerned me so much personally in my declaration:
The Act also contains an eyebrow-raising exception for established" and widely recognized" media outlets whose primary purpose" is to report news and current events," the speaker- and content-based flavor of which are discussed further below. 1349.09(O)(2). But the Act also 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.
And thus the law is not going into effect and is blocked by the preliminary injunction. As is standard practice in these cases (all of which NetChoice keeps winning at the district court level), I expect that Ohio will take the case to an appeals court.
But, maybe, just hear me out: states should stop passing obviously unconstitutional laws that attack the free speech rights of both users and websites?