Ohio AG, NetChoice Each Seeks Summary Judgment Over Parental Notification Law

NetChoice and Ohio Attorney General Dave Yost (R) filed dueling motions for summary judgment Friday (docket 2:24-cv-00047) in U.S. District Court for Southern Ohio over the state's social media parental notification law. NetChoice’s motion seeks to permanently block the statute on constitutional grounds, while Yost’s motion defends the law as "valid," and argues for its enforcement.

The statute’s requirement that covered websites collect parental consent from minors younger than 16 before allowing them to access and engage in protected speech on those websites violates the First Amendment and the 14th Amendment's due process clause, said NetChoice’s motion. There’s “no genuine issue of material fact,” and Yost “is entitled to judgment as a matter of law,” said the AG’s motion. The court preliminarily enjoined the statute in February (see 2402130041).

NetChoice argues that the statute “would deprive minors across Ohio of their constitutional rights to access and engage in speech,” said the plaintiff's memorandum in support of its motion. It also would infringe websites’ rights to disseminate speech, it said. The statute “compounds these injuries” by defining the websites it regulates with a troubling and vague content- and speaker-based set of coverage provisions, it said.

The Ohio statute “is yet another example of an unconstitutional state regulation of minors’ access to online speech,” said the NetChoice memorandum. The court previously concluded that the Constitution forbids the enforcement of the statute against NetChoice’s members, it said. For that reason, the court issued a temporary restraining order before the statute took effect in January and subsequently issued an order preliminarily enjoining the AG from enforcing it, it said.

No material change in the law has occurred since then, said the memorandum. The facts that supported the court’s previous injunctive orders in this case “persist and are now undisputed,” it said. For all the reasons the court has already recognized, NetChoice “is entitled to a permanent injunction” preventing Yost’s enforcement of the statute against NetChoice’s members, it said.

But Yost argues that every economic regulation shouldn’t be subject to judicial review “simply because it arguably has a tangential effect on conduct that might be deemed expressive,” said the AG's memorandum in support of his summary judgment motion. “Most human acts, after all, could conceivably be expressive,” it said.

NetChoice’s challenge to Ohio’s statute “is a case in point,” said the AG’s memorandum. The statute “is an economic regulation that applies to a limited subset of website operators” who wish to contract with minors, it said. The statute thus “is valid under rational-basis review as an economic regulation of certain contracts -- not speech,” it said.

The First Amendment isn't implicated by an economic regulation “just because it applies to contracts with entities that host speech,” said Yost’s memorandum. Even if the statute does implicate some speech, “it remains valid under intermediate scrutiny because it does so only incidentally and in a content-neutral manner -- without regard to or preference for any particular topic,” it said. The statute makes constitutionally permissible distinctions “based on the speaker or medium -- not their message,” it said. As a result, the statute shouldn’t be subject to heightened scrutiny under the First Amendment, it said.