A law requiring parental consent for child social media use is facing serious legal questions. The law, passed through the state budget and set to go into effect in January, was first placed on hold just after the new year. Now a judge has extended that hold and expressed doubt concerning the First Amendment implications.
What is the law in question?
The Parental Notification by Social Media Operators law was included in the Ohio state operating budget in July 2023. According to Lt. Governor John Husted’s office, the law would require social media companies to:
- Create a method to determine whether the user is a child under the age of 16
- Obtain verifiable parental or legal guardian consent
- Send written confirmation of the consent to the parent or legal guardian
If the user indicates that they are under the age of 16 via the splash page, the following methods can be used for verification:
- Sign a digital form consenting to the terms of service
- Use a credit card, debit card, or other online payment system
- Call a toll-free telephone number
- Connect to trained personnel via video-conference
- Check a form of government-issued identification
Who is challenging the law?
The law has been challenged by the Netchoice trade group representing several social media companies. According AP News, “the litigation argues that Ohio’s law — which requires social media companies to obtain a parent’s permission for children under 16 to sign up for social media and gaming apps — unconstitutionally impedes free speech and is overbroad and vague.”
The group has won lawsuits against similar restrictions in California and Arkansas.
Why is the law on hold?
In a recent ruling extending the hold on the law, District Judge Algenon Marbley described it as a “breathtakingly blunt instrument for reducing social media’s harm to children.” The content of the judgment expresses serious concerns about the constitutionality of the law.
Ohio Capital Journal reports that “the question of whether the law regulates the content of speech — rather than just the manner of speech as the state argued — is important, because content-based restrictions trigger strict scrutiny. That standard of review requires a law to serve a compelling state interest by the least restrictive means to remain in place.
Judge Marbley pushed back against several of the arguments made by the state including the “troublingly vague” nature of the law, according to the Statehouse News Bureau.
The judge’s ruling seemed to point to the likelihood of the law being overturned in federal court, just as other similar laws across the country.
What could happen next?
In a statement, Husted said his team is “resolved to escalate our efforts,” despite this setback.
“It’s disappointing, but it will not deter us from our responsibility to protect children from exploitative social media algorithms that are causing a crisis of depression, suicide, bullying and sexual exploitation among our children,” Husted wrote in the statement. “These companies could solve this problem without passing new laws, but they refuse to do so.”
Meanwhile, NetChoice is confident they will prevail.
Chris Marchese, lawyer for NetChoice, thanked the court for “prevent(ing) regulators from violating the free speech and online privacy rights of Ohioans and their kids as our case proceeds.”
“This is the fourth ruling NetChoice has obtained…demonstrating that this law and others like it in California and Arkansas not only violate constitutional rights, but if enacted, would fail to achieve the state’s goal of protecting kids online. We look forward to seeing these laws permanently struck down and online speech and privacy fully protected across America.”