NetChoice Sues Ohio Over Its Social Media Law; Gets Quick Temporary Restraining Order
Go NetChoice go. The trade group has been going around the country and blocking all the bad state level social media laws. Early on (with CCIA) it sued to stop Texas and Florida's problematic laws. Last year it sued successfully to stop laws in Arkansas and California. Just a few weeks ago it sued Utah over its social media law. And late last week it sued Ohio over its law.
I filed a declaration to go along with NetChoice's request for a temporary restraining order and preliminary injunction. I also recommend reading the declarations of Denise Paolucci who runs Dreamwidth, and Libby Roin from GoodReads.
Ohio's law was set to go into effect this month, so there was a short timeframe to get this filed. Thankfully, however, the judge has already granted the temporary restraining order and set a hearing date in early February to discuss the preliminary injunction.
Ohio's law is a little bit different than other state laws, though has plenty of similarities. This one focuses more on parental" controls and notifications, requiring social media sites to alert parents and get their consent before kids could use certain sites. Of course, parents can already kinda do that by controlling what devices their kids have and how they're configured.
So, really, what this law is about is making sure kids aren't able to surreptitiously use sites their parents don't want them to. And that raises serious 1st Amendment questions. As NetChoice notes, this all seems like a classic moral panic against new media:
The websites that the State seeks to regulate here thus join a long line of media that have faced calls for regulation based on fears that they expose minors to harmful speech -such as dime novels," [r]adio dramas," movies," comic books," television," music lyrics," and video games." Brown v. Ent. Merchs. Ass'n, 564 U.S. 786, 797-98 (2011). Just as with those other forms of protected speech, minors' significant measure of First Amendment protection" includes the right to access the covered websites here free from governmental restraint. Id. at 794 (quoting Erznoznik v. Jacksonville, 422 U.S. 205, 212-13 (1975)); see Packingham v. North Carolina, 582 U.S. 98, 104-05 (2017). As the Supreme Court has repeatedly made clear, the government does not have a freefloating power to restrict the ideas to which children may be exposed." Brown, 564 U.S. at 794. That is precisely why courts across the country have blocked laws restricting or otherwise regulating minors' access to protected speech online. E.g., NetChoice, LLC v. Bonta, 2023 WL 6135551 (N.D. Cal. Sept. 18, 2023); NetChoice, LLC v. Griffin, 2023 WL 5660155 (W.D. Ark. Aug. 31, 2023). This Court should likewise declare the Act here unconstitutional and enjoin Defendant from enforcing it.
As the complaint argues, this law doesn't just violate the Constitution in one way, but rather three 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.
As I pointed out in my declaration, all three of these are a concern to me, especially given that I run a media" site, but I have no idea, under this law, if I qualify as established" and widely recognized," given the lack of definitions. And, even if I do, just the fact that the law exempts only widely recognized" media sites seems to unfairly (and unconstitutionally) favor some media sites over others.
Paolucci's declaration points out some fairly important points that Ohio's legislature didn't seem to think through in drafting this law:
From my twenty-two year career in online Trust and Safety, both at Dreamwidth and at prior jobs, I know that confirming a parent-child relationship is significantly more complicated than single action to establish parental consent. At a previous employer, who utilize credit card verification to confirm parental consent under COPPA to allow children under 13 to create an account, a relatively common social engineering vector adopted by parties who maliciously wished to fool the website into closing a user's account was to write to the website and falsely claim the user was under the age of 13 and did not have parental consent to hold an account, even though the user was over the age of majority. On Dreamwidth, we have likewise experienced malicious actors writing to us and falsely claiming that a user is under the age of 13 and does not have parental permission to hold an account. Dealing with these social engineering attempts, verifying the user's actual age, and confirming that the person writing to us was not the user's parent or guardian is a significant support burden that would only increase under 1349.09 as it became known that someone could maliciously force us to close a user's account simply by claiming them to be under the age of 16. These tactics are already relatively common, and I believe the use of them would increase if this law goes into effect. We do not have the capacity to accept this additional support burden, nor do we have the financial resources necessary to increase staffing to increase that capacity
From my twenty-two year career in online Trust and Safety, know that familial relationships are often far more complicated than conventional wisdom believes, and identifying which person is a child's parent or guardian with legal decision-making authority is often not simple task. For instance, if a child has two divorced parents who disagree about whether their child should be permitted to hold an account on a website, the website must confirm the legal relationship between the parties and the child involved, and determine which of the people at hand has the legal decision-making authority to provide sufficient parental consent. In a particularly contentious divorce, this can require the website to review divorce decrees, examine legal paperwork, and determine the authenticity and provenance of the documents supplied to them. Because someone who lives in Ohio may have obtained their divorce from any one of the thousands of court systems across the United States, or even from another country, before moving to Ohio, this would require us to become experts in authenticating court documents from anywhere in the world. We do not have the capacity to perform this authentication, nor do we have the financial resources necessary to increase staffing to increase that capacity.
There is no national identity database that allows someone to verify a child's identity, the legal relationship between a parent and a child, or which parent a has the authority to make binding decisions for a child. There is no way to verify user's identity beyond requiring the upload of government-issued identifying documents, which many children under the age of 16 do not have. There is no way for a website to verify that the documents uploaded for identity verification purposes belong to the person who is uploading them or that the person who controls the account is the same person who provided the identifying documents. Disputes about the identity of an account holder, their age, or the legal relationship between them and the person claiming to be their parent are complex, time-consuming, costly to investigate and resolve, and unfortunately common. We do not have the capacity to accept this additional support burden, nor do we have the financial resources necessary to increase staffing to increase that capacity
These are pretty big deals that a bunch of lawmakers didn't even bother to consider, because this isn't actually about social media or parental consent. It's about culture wars.
As for the declaration from Goodreads, it notes just how silly the law would be in practice:
It seems clear that the Act was not intended to restrict young readers from discussing books, as would result if the Act were interpreted to apply to Goodreads, but it is not clear whether this exemption as written applies to Goodreads. On one hand, any exemption for reviews-oriented social interaction would appear applicable to Goodreads, the purpose of which is to facilitate reviews and related discussion on books, but on the other hand, there is no requirement that all books reviewed or discussed on Goodreads be offered for sale" by e-commerce, as the exemption apparently requires. Although the vast majority of books reviewed on Goodreads can be purchased through e-commerce, I have not reviewed each and every such title to ensure all are offered for sale" by e-commerce (or even are in print), nor would it be feasible to do so, though I suspect there are books listed on Goodreads that are not offered for sale by e-commerce (e.g., out of print titles). I cannot think of a reason why Goodreads' eligibility for the exemption should depend on whether a particular book reviewed is or is not offered for sale by" e-commerce, nor do I see any reason for the State to impede young teens' ability track their reading and discuss books on Goodreads. But given the inclusion of that language in subsection O, I do not know for sure that Goodreads is exempt.
It's good that the judge has ordered a near immediate TRO and put the law on hold, and hopefully the judge will also grant the preliminary injunction.
So far, NetChoice has done a pretty good job, winning every one of these state law cases at the district court level, and only losing in one appeals court to date (the 5th Circuit one) which is currently being reviewed by the Supreme Court.
One hopes that the Supreme Court makes it clear that all of these types of laws are bogus and saves NetChoice and others from having to go through this again in every other state...