Judge Grills Ohio in NetChoice Case About Parental Consent Law

“Why [would] intermediate scrutiny ... be the proper measure” to apply to this case? Marbley asked Stephen Tabatowski, Ohio associate assistant attorney general.

“The act gets intermediate scrutiny because the act is content neutral,” said Tabatowski. “It's content neutral because that inquiry at its core is about whether the government is regulating or drawing distinctions in a statute because of disagreement with some message that's being conveyed.”

But the judge asked if “the act could arguably permit a minor to create an account” to something like the New York Times “without parental consent, but not with Facebook,” how would intermediate scrutiny apply? “Explain to me, on the surface, why that is valid and why that is not content-based?”

Tabatowski said it was because the New York Times would not meet the definition of “operator” outlined in the statute. the judge then asked more questions about what businesses and sites would or would not be considered an operator under the act.

“[Isn't] the statute -- which focuses on websites that target children -- inextricably linked to the content of those websites, because the only reason that you believe that they target children, or children would find it compelling to access the website, is because of this content?” the judge asked. “Aren’t the websites either likely or unlikely to be accessed by children because of their content, and as a result, the language actually distinguishes between speakers on the basis of that content?”

Tabatowski said the legislation isn't concerned about content a minor is viewing, but whether the website requires a contract for access to it. “To your point, the fact that a minor could get on the New York Times and read an article that they would be unable to read on Facebook, that's evidence of neutrality, because the state doesn't care what that article says,” he said. “It cares whether you know the medium in which the minor is accessing that article.”

Marbley said that is not necessarily so. “The attorney general argues both that it seeks to regulate the ability of operators to contract with minors, not to limit minors’ access to expensive content, but in the same graph, asserts that the state's compelling interest is in protecting minors from harm associated with covered operations platforms, including mental health issues, data privacy issues and sexual predation,” he said.

When questioning Jeremy Maltz, partner at Lehotsky Keller Cohn, who argued on behalf of NetChoice, Marbley asked about the fact that parental consent grants a minor access to websites regulated under the act.

“Does the statute prevent a 15-year-old from accessing what he or she might want to access, so long as the parents go along [with it]?” he asked. “If the parents are in sympatico with [what] the kid wants to see, we don't have a problem, is that right?”

Maltz said that was correct, the minor and the service would be allowed to enter a contract with parental consent. Marbley asked how that burdened speech, using social media platform TikTok as an example.

“If a parent has entered into a contract [and] has signed the contract under the statute with TikTok, then how does that burden TikTok and TikTok’s speech as a curator?” he said. “Once the parent signs the contract … the kid can just go and explore, as kids will want to do, and they might explore things that are ... ballet dancing, and they might explore things that are dirty dancing, but the parent understands that. Inside of that contract, you give the kids the right to get into TikTok and take advantage of all of its offerings.”

Maltz said that this does not change the unconstitutionality of the act. “This act doesn't seek to educate parents about those tools, it doesn't seek to make those tools more effective,” he said. “What it says is, every time a minor, and in this case, a minor under 16, wants to use an online service ... you must secure parental consent. That's just flatly unconstitutional under binding precedent.”

Ahead of the hearing, NetChoice seemed assured that the court would side in its favor. “We are confident the Court will permanently strike down Ohio’s unconstitutional law and ensure that free speech, privacy and security are protected by reaffirming that parents, not the government, are the rightful custodians of their families’ choices in the digital age,” said Paul Taske, associate director of litigation at NetChoice. “We are hopeful a permanent injunction might serve as a wake-up call and cause them to re-evaluate their approach to online safety. We hope to work with lawmakers on a meaningful and legal solution for that.”

Case 24-00047 began in January 2024 when NetChoice sued Ohio Attorney General Dave Yost over the Social Media Parental Notification Act, part of a larger bill the legislature approved and later was signed into law. NetChoice alleges that the measure impedes safety and security online and violates the First Amendment.

Marbley said he expects to issue a decision during the next two weeks.