NetChoice Lauds TRO Blocking Enforcement of Ohio Social Media Law

NetChoice hailed Tuesday’s decision in Columbus, Ohio, granting its motion for a temporary restraining order to block Ohio Attorney General Dave Yost (R) from enforcing the state’s Parental Notification by Social Media Operators Act when it takes effect Jan. 15 (see 2401050055).

NetChoice is grateful that U.S. District Judge Algenon Marbley for Southern Ohio “halted this law so our case for a preliminary injunction can be heard,” emailed Chris Marchese, director of NetChoice’s Litigation Center. “We look forward to making our case that protects Ohioans’ First Amendment rights, privacy, and security online,” said Marchese.

Yost’s office didn’t immediately comment, but Ohio Gov. Mike DeWine (R) and Lt. Gov. Jon Husted (R) released statements critical of the judge's decision. DeWine supported the statute because he believes that parents "should have a role in their children’s social media use," said the governor. "I am disappointed in this injunction and hope it will be lifted as the case further proceeds so these important protections for children can take effect," he said. Husted said that the Big Tech companies behind the NetChoice lawsuit were "disingenuous participants" in the legislative process "and have no interest in protecting children."

NetChoice is challenging the constitutionality of the statute on First and 14th amendment grounds. The judge found that NetChoice has standing to bring its claims on behalf of its member companies and Ohio minors, said his opinion and order Tuesday (docket 2:24-cv-00047).

It’s unlikely that the government will be able to show that the statute “is narrowly tailored to any ends that it identifies,” said the opinion and order. Foreclosing minors under 16 from accessing all content on websites that the statute purports to cover, absent affirmative parental consent, “is a breathtakingly blunt instrument for reducing social media’s harm to children,” it said.

According to the judge, NetChoice identifies several aspects of the statute that the court “finds troublingly vague.” The statute purports to apply to social media platform operators that target children or are reasonably anticipated to be accessed by children. But on its face, “this expansive language would leave many operators unsure as to whether it applies to their website,” said the opinion and order. The Ohio legislature’s apparent attempt at clarity “is also unilluminating,” it said.

The statute also contains “an eyebrow-raising exception” for established and widely recognized media outlets whose primary purpose is to report news and current events, said the opinion and order. But the statute “provides no guardrails or signposts” for determining which media outlets are established and widely recognized, it said.

Such “capacious” and subjective language “practically invites arbitrary application of the law,” said the opinion and order. Acknowledging that Yost hasn’t yet had an opportunity to brief the issue “at this very preliminary stage,” but only to make an oral challenge at a TRO hearing the judge convened Monday, it said the statute “does appear vague.”

On its face, the statute distinguishes among different websites -- exempting some and targeting others -- “and therefore, appears speaker-based,” said the opinion and order. To determine conclusively whether the statute’s speaker-based distinctions “are a proxy for regulation of content that the government disfavors,” the court “would benefit from a more complete record, including the legislative history,” it said.

Nonetheless, based on the statute's text, the court suspects that NetChoice will succeed in showing that the law “is geared toward requiring parental consent before minors can access the sort of content” that tends to appear on the websites that the statute seeks to govern, said the opinion and order. Its exemptions for widely recognized media outlets and product review sites “bolsters this conclusion,” it said.