Ohio AG, NetChoice Spar Over Social Media Law’s Summary Judgment Motions

NetChoice and Ohio Attorney General Dave Yost (R), having filed dueling motions for summary judgment May 3 in U.S. District Court for Southern Ohio over the state's social media parental notification law (see 2405060004), followed that up Monday with dueling responses in opposition (docket 2:24-cv-00047).

NetChoice’s summary judgment motion seeks to permanently block the Ohio social media statute on constitutional grounds. Yost’s motion defends the law as "valid" and argues for its enforcement.

The Ohio statute “unconstitutionally restricts” minors’ access to and use of websites that “undisputedly disseminate vast amounts of protected speech," said NetChoice’s opposition. The statute’s parental-consent requirement for minors to access a content- and speaker-based collection of covered websites “violates the First Amendment under binding Supreme Court precedent,” it said.

The statute’s “central coverage provisions” also are unconstitutionally vague, leaving many websites across the internet uncertain about whether they must shoulder its “unconstitutional burdens,” said NetChoice’s opposition. The court “already determined as much, based on a materially identical record,” with its Feb. 12 order granting NetChoice’s motion for a preliminary injunction blocking Yost from enforcing the statute (see 2402130041).

Nothing in Yost’s motion for summary judgment provides the court “reason to reconsider” its Feb. 12 conclusions, said NetChoice’s opposition. Yost’s arguments don’t address the court’s analysis, “nor do they grapple with the profound and disruptive effects” the statute will have on online speech, it said. Yost instead “largely just repeats the same arguments,” relying on the same authorities that the court has already rejected and that NetChoice has addressed in its motion for summary judgment.

Yost’s “handful” of new authorities and “glosses on prior arguments” fail to carry his “heavy burden” to justify the statute’s “onerous restrictions” on covered websites’ ability to publish and distribute speech to minors and speech by minors, said NetChoice’s opposition. Nor do Yost’s “superficial additions come anywhere near justifying” the statute’s intrusion on minors’ ability to produce and receive speech, it said.

Yost, on the other hand, sees Ohio’s parental notification law as "an economic regulation that applies to a limited subset of website operators,” based on their use of design features and functions that pose unique risks, that wish to contract with minors, said his opposition. 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 opposition. Even if the statute implicates some speech, “it remains constitutionally valid because it does so only incidentally and in a content-neutral manner -- without regard to or preference for any particular topic,” it said. It 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.

No matter the standard, the statute “survives constitutional scrutiny,” said Yost’s opposition. Ohio has an “important and compelling interest” in protecting minors by restricting their ability to contract with covered operators absent parental consent, “particularly given the unique health and safety risks adolescents face on covered operators’ platforms," it said.

Ohio also has an important and compelling interest “in vindicating parents’ fundamental right to control their children’s care and upbringing,” said Yost’s opposition. The statute “places parents in control of who can collect and use their children’s personal information or subject them to onerous contract terms,” it said. Contrary to NetChoice’s arguments, the statute “is narrowly tailored to accomplish these goals,” it said.

NetChoice also is wrong to call the statute unconstitutionally vague, said Yost’s opposition. The law is “sufficiently specific,” it said: “An ordinary person would understand to whom it applies, what conduct it prohibits, and how penalties are to be assessed and meted out.” The statute provides “explicit standards” for the AG and the courts to enforce it “in a non-arbitrary and non-discriminatory manner,” it said.