Ohio judge permanently blocks social media age verification law
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Gov. Mike DeWine is eager to appeal the decision, and state lawmakers are already working on alternatives.
This story was originally published by Ohio Capital Journal.
A federal judge in Ohio permanently blocked a parental consent law for social media this week. The measure, approved as part of the 2023 budget bill, would have required social media companies verify a user’s age and block access to kids younger than 16 unless they have parental consent. The court had halted it while the case progressed and the statutes were never enforced.
From the outset, the proposal’s puzzling definitions, carve outs, and cumbersome verification methods made for a rickety structure. Despite lauding the effort to protect children, U.S. District Judge Algenon Marbley determined, “the act as drafted fails to pass constitutional muster and is constitutionally infirm.”
“Even the government’s most noble entreaties to protect its citizenry must abide in the contours of the U.S. Constitution, in this case the First Amendment,” he added.
Ohio Gov. Mike DeWine, who championed the provisions alongside former Lt. Gov. Jon Husted, disagreed with the ruling.
“We know how harmful social media is to children without parental involvement,” he said in a written statement. “This law is a commonsense solution that allows social media usage by a child under the permission of a parent, just like going on a school field trip or participating in youth sports. This ruling should be appealed.”
A spokeswoman for Attorney General Dave Yost said, “We’re reviewing the decision and will determine the next steps.”
Meanwhile, lawmakers are already back at the drawing board, working on new legislation that imposes age verification at the level of a phone’s app store, rather than platform by platform. Those bills have yet to get a hearing, but the group that successfully challenged Ohio’s existing restrictions testified against similar legislation in Utah.
Marbley’s Reasoning
Ohio’s law requires websites and online communities that “target” children or can be “reasonably anticipated” to be accessed by them to verify a user’s age. That verification can happen with an email, credit card, over the phone or by video conference among other options. There’s an 11-factor list to determine whether a website falls within the law’s scope and has carveouts for product review sites and “widely recognized” media outlets.
The trade group NetChoice argued the law plainly violates the First Amendment by regulating speech based on its content or the speaker. The group added the state’s explanation of which companies must comply is unconstitutionally vague. Yost fired back that the law isn’t about speech at all, it has to do with whether minors can enter into contracts. “At worst,” the state argued, the law “only incidentally implicates speech.”
Marbley dismissed the state’s contention that the law doesn’t regulate protected speech. He drew a comparison between social media companies and publishers, and while acknowledging the analogy is “imperfect,” it demonstrates that the law restricts speech “in two consequential ways.”
“It regulates operators’ ability to publish and distribute speech to minors and speech by minors,” he explained, “and it regulates minors’ ability both to produce speech and to receive speech.”
As for the argument that the measure is really about contracts, Marbley pointed to the law’s emphasis on socially interactive features.
“These provisions do not strike at the commercial aspect of the relationship between covered websites and their users,” he wrote, “they tackle the social speech aspect of it.”
Digging further into the dispute over whether the restrictions are content-neutral, Marbley again set aside the state’s arguments. He wrote the determination whether a website targets or would likely be accessed by children “certainly requires consideration of the content on an operator’s platform.” He added the law’s 11-factor list makes it plain that content is the “essential consideration.”
Marbley found fault with the law’s carveouts for review and news media sites as well. He described giving a pass to so-called established media as “eyebrow-raising” and questioned treating a product review site differently than a book or film review site.
The law is “favoring engagement with certain topics, to the exclusion of others,” he wrote, “That is plainly a content-based exception.”
And although Marbley acknowledged the law could still stand if it’s narrowly tailored and serves a compelling state interest, he found the state simply hadn’t cleared that bar.
“Ohio’s response to a societal worry that children might be harmed if they are allowed to access adult-only sections cannot be to ban children from the library altogether absent a permission slip,” he wrote.
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