• by Wendy Davis  @wendyndavis, February 12, 2024

Ohio's new social media law, which restricts teens' ability to use tech platforms, violates the First Amendment rights of minors as well as tech companies, a federal judge said Monday.

The ruling, issued by U.S. District Court Judge Algenon Marbley in the Southern District of Ohio, prevents the state from enforcing the Parental Notification By Social Media Operators Act.

“This court finds the Act unconstitutional and grants plaintiff's motion for a preliminary injunction,” Marbley wrote in a 29-page ruling.

The law would have prohibited some -- but not all -- web services with social functionality from allowing minors under 16 to create accounts or access content, without parental permission.

“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,” Marbley wrote.

“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,” he added.

The law was originally supposed to take effect last month, but on January 9 Marbley issued an emergency restraining order that blocked enforcement for 30 days. The new order extends that block until he issues a final ruling -- which could take years.

The statute, passed last July, generally applies to operators of sites with social features (such as allowing users to create profiles and interact) and that are aimed at minors under 16 or “reasonably anticipated” to be accessed by teens under 16. The statute exempts ecommerce sites that allow people to post reviews, and “established and widely recognized” media outlets that report news.

The tech industry group NetChoice sued to block the law as unconstitutional. Among other arguments, the group said the law restricts minors' First Amendment right to express themselves and access speech. The organization also said the law wrongly restricted speech based on subject matter, arguing that the exceptions for e-commerce and news sites are content-based and therefore violate the First Amendment.

Ohio Attorney General Dave Yost countered in recent court papers that the law doesn't regulate content but merely restricts contracts -- including minors' ability to agree to terms of service, register with online services and create usernames.

“The state’s purpose -- to prohibit covered operators from contracting with minors -- is content neutral,” Yost's office wrote in a motion asking Marbley to allow enforcement.

He argued that the law's purpose was “to protect minor children from agreeing to contracts with operators whose platforms pose detrimental privacy, health, and safety risks to the child.”

Marbley rejected those arguments by Yost.

“The Act is not narrowly tailored to protect minors against oppressive contracts,” he wrote. “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.”

He added that the law was also underinclusive regarding protecting minors from contracts, because “a child can still agree to a contract with the New York Times without their parent’s consent, but not with Facebook.”

Ohio isn't the only state to pass legislation that could affect teens' ability to access social media. Arkansas, Utah, Texas and California have also passed laws that could restrict minors' use of the internet.

A federal judge in Arkansas recently blocked that state's law, which would have required platforms to verify users' ages and prohibited teens under 18 from having social media accounts without parental permission, while a different federal judge in California enjoined enforcement of a law that would have required online companies likely to be accessed by users under 18 to prioritize their “best interests” and “well-being.”