A Columbus based federal judge has enjoined from enactment a recently passed Ohio statute limiting minors’ access to social media. The Court considered the new law impermissibly vague. For now, the Act’s limitations will not be in place, pending further court action.
Following the lead of several other states, the Ohio legislature in July of 2023 passed the Parental Notification by Social Media Operators Act. It was due to become effective January 15. A trade organization called NetChoice, however, obtained a temporary restraining order on January 8, enjoining the enactment of the Act. On February 7, the court held a hearing on a preliminary injunction, and on February 12, the court granted the preliminary injunction.
The Act requires certain website operators to obtain parental consent before allowing any unemancipated child under the age of 16 to register or create an account. The Act applies to website operators that “target” children or are “reasonably anticipated to be accessed by children.” The Act set out a list of 11 factors to consider in determining whether a website is reasonably anticipated to be accessed by children. The Act had some serious teeth, as it imposed a $1,000 per day penalty for noncompliance for the first 60 days, $5000 per day for days 61-90 and $10,000 per day for days 91 and beyond.
NetChoice brought the suit on behalf if its members, which include Facebook, X and YouTube. It argued that its members suffered because compliance would entail a substantial financial burden, and would chill the activities of many of its members. It also argued that the public’s First Amendment rights would be violated by the burden the Act placed on the free flow of information.
In enjoining the Act, the Court focused on two problematic aspects. It found that the Act’s “expansive language would leave may operators unsure as to whether it applies to their website.” It concluded that the 11 factors did not cure this deficiency, as the listed considerations are undefined. The court also found that an exception in the Act, which excepted out “established” and “widely recognized” media outlets from the Act’s requirements was so capacious and subjective, that it would “practically invite arbitrary application of the law.”
I awarding the injunction, the Court found that NetChoice’s members would sustain irreparable harm from the Act. It noted that NetChoice’s members would “need to spend money on engineering and compliance procedures” to comply. It noted that for some NetChoice members, the requirements would be extremely burdensome. And NetChoice persuasively argued that there would be no cause of action that would allow the members to recoup those expenditures. Moreover, because the Act impaired constitutional rights, the harm to the public was presumed to be irreparable.
I suspect the state will appeal this decision at some point. But it may make more sense for the legislature to draft a clearer bill.
