NetChoice, LLC v. Yost

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

NETCHOICE, LLC, :

:

Plaintiff, : Case No. 2:24-cv-00047

:

v. : Chief Judge Algenon L. Marbley

:

DAVE YOST, in his official capacity as : Magistrate Judge Elizabeth Preston Deavers

Ohio Attorney General, :

:

:

Defendant. :

OPINION AND ORDER

This matter is before this Court on Plaintiff NetChoice, LLC’s (“NetChoice”) Motion for

Preliminary Injunction (“PI”) against Defendant Ohio Attorney General David Yost. (ECF No.

2). Having granted Plaintiff’s request for a TRO on January 8, 2024, this Court held a Preliminary

Injunction Hearing on Plaintiff’s Motion on February 7, 2024. For the reasons set forth below,

this Court GRANTS Plaintiff’s Motion for a Preliminary Injunction.

I. BACKGROUND

A. Factual Background

This case is about whether an Ohio state law, the Parental Notification by Social Media

Operators Act, Ohio Rev. Code § 1349.09(B)(1) (“Act”), which was originally set to take effect

on January 15, 2024, violates the First and Fourteenth Amendment rights of popular websites

including Facebook, X (formerly Twitter), and YouTube, in addition to violating the First

Amendment rights of those websites’ users. The websites’ and users’ interests are represented by

Plaintiff NetChoice, an Internet trade association, which brought this suit against Ohio Attorney

General David Yost, in his official capacity, seeking declaratory and injunctive relief to prevent

Yost from enforcing the law against NetChoice’s members.

1. NetChoice and the Internet Landscape

NetChoice is an Internet trade association that represents several popular websites and

platforms including Google, Meta, X, Nextdoor, and Pinterest, each of which, NetChoice contends,

publish, disseminate, create, or distribute speech protected by the First Amendment. (ECF Nos. 2

at 6-7; 2-1 ¶ 11). Adults and teens alike flock to NetChoice’s member websites and generate

billions of “posts” every day. (ECF Nos. 2 at 7; 2-1 ¶ 6). NetChoice also details the non-legislative

tools that parents have at their disposal to oversee their children’s use of the internet, including

restrictions made available by devices, networks, software, and even by NetChoice’s member

organizations on their platforms. (ECF No. 2 at 7-8; 2-1 ¶ 8).

2. The Entities that the Act Seeks to Regulate

The Act, which resembles legislation enacted in other states, seeks to require certain

website operators to obtain parental consent before allowing any unemancipated child under the

age of sixteen to register or create an account on their platform. Specifically, the Act regulates

“operator[s]” of “online web site[s], service[s], or product[s]” that (1) “target[] children,” or are

“reasonably anticipated to be accessed by children”; (2) have users in the state of Ohio; and (3)

allow users to do all of the following:

(a) Interact socially with other users within the confines of the online web site,

service, or product;

(b) Construct a public or semipublic profile for the purpose of signing into and

using the online web site, service, or product;

(c) Populate a list of other users with whom an individual shares or has the ability

to share a social connection within the online web site, service, or product;

(d) Create or post content viewable by others, including on message boards, chat

rooms, video channels, direct or private messages or chats, and a landing page or

main feed that presents the user with content generated by other users.

§ 1349.09(A)(1); (B). The Act explains that in order to determine “whether an operator’s online

web site, service, or product targets children, or is reasonably anticipated to be accessed by

children, the attorney general or a court may consider the following factors”:

(1) Subject matter;

(2) Language;

(3) Design elements;

(4) Visual content;

(5) Use of animated characters or child-oriented activities and incentives;

(6) Music or other audio content;

(7) Age of models;

(8) Presence of child celebrities or celebrities who appeal to children;

(9) Advertisements;

(10) Empirical evidence regarding audience composition; and

(11) Evidence regarding the intended audience.

§ 1349.09(C).

The Act contains several exceptions. Of relevance here, the Act does not apply to corners

of the Internet where “interaction between users is limited to”: “(1) Reviewing products offered

for sale by electronic commerce or commenting on reviews posted by other users; (2) Comments

incidental to content posted by an established and widely recognized media outlet, the primary

purpose of which is to report news and current events.” § 1349.09(O).

3. The Act’s Requirements of Covered Operators

If an operator falls within the above-enumerated parameters, it is required to: (1) “[o]btain

verifiable consent for any contract with a child, including terms of service, to register, sign up, or

otherwise create a unique username to access or utilize the online web site, service, or product,

from the child’s parent or legal guardian” through a variety of acceptable methods; and (2) present

to the parent or guardian a list of features related to content moderation and a link where they may

review those features. See § 1349.09(B). In the absence of parental consent, children under the

age of sixteen “shall” be denied access to the “use of the online web site, service, or product.” §

1349.09(E).

4. The Act’s Enforcement Mechanism and Penalties for Non-Compliance

Should a covered operator be found to be in noncompliance with the Act, the Ohio Attorney

General “shall investigate” the issue and may bring suit. § 1349.09(G); (H). A court that finds

that an operator has violated the terms of the Act “shall impose a civil penalty” under the following

scheme: (1) up to $1000 per day for the first 60 days of noncompliance; (2) up to an additional

$5000 per day for days 61-90; and (3) up to an additional $10,000 per day for days 91 and beyond.

See § 1349.09(I). “If an operator is in substantial compliance with this section,” however, the

attorney general may not commence civil action until providing the operator with written notice

of the suspected violations, and a 90-day opportunity to cure, in which the operator must provide

the attorney general with “written documentation that the violation has been cured and that the

operator has taken measures sufficient to prevent future violations.” § 1349.09(M).

B. Procedural Background

The Governor of Ohio signed the Act into law in July 2023, and it was set to take effect on

January 15, 2024. Plaintiff NetChoice, however, filed this lawsuit and a Motion requesting both a

TRO and PI on January 5, 2024. (ECF No. 2). This Court held a conference on Plaintiff’s Motion

for a TRO on January 8, 2024, and granted Plaintiff’s request, thereby enjoining Attorney General

Yost from enforcing the Act against NetChoice’s member organizations. Attorney Yost has now

responded to NetChoice’s Motion for Preliminary Injunction (ECF No. 28), and NetChoice has

replied (ECF No. 29).

II. STANDARD OF REVIEW

Rule 65 of the Federal Rules of Civil Procedure provides for preliminary injunctive relief

when a party believes it will suffer immediate and irreparable injury, loss, or damage. See Fed. R.

Civ. P. 65. A preliminary injunction is an “extraordinary remedy” intended to preserve the status

quo until trial, Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008), and should only be

awarded upon a clear showing that the movant is entitled to such relief, Southern Glazer’s Disrib.

Of Ohio, LLC v. Great Lakes Brewing Co., 860 F.3d 844, 849 (6th Cir. 2017).

In determining whether to issue a preliminary injunction, the court must consider the

following four factors: “(1) whether the movant has a strong likelihood of success on the merits;

(2) whether the movant would suffer irreparable injury without the injunction; (3) whether issuance

of the injunction would cause substantial harm to others; and (4) whether the public interest would

be served by the issuance of the injunction.” Certified Restoration Dry Cleaning Network, L.L.C.

v. Tenke Corp., 511 F.3d 535, 542 (6th Cir. 2007) (citation omitted). All four factors must be

balanced rather than treated as prerequisites. Id.

III. LAW & ANALYSIS

A. Standing

Before turning to the preliminary injunction considerations outlined above, this Court must

first determine whether NetChoice has standing to bring these claims on behalf of: (1) its members;

and (2) its members’ users. A litigant has standing if it “is entitled to have the court decide the

merits of the dispute or of particular issues.” Warth v. Seldin, 422 U.S. 490, 498 (1975). There

are two constraints that govern a party’s standing: “[c]onstitutional standing addresses who has the

right to invoke the power of a court (e.g., by filing a lawsuit), while prudential standing addresses

what arguments a party may raise as a claim or defense.” NetChoice, LLC v. Griffin, No. 5:23-

CV-05105, 2023 WL 5660155, at *8 (W.D. Ark. Aug. 31, 2023) (emphasis in original) (citing

Curtis A. Bradley, Ernest A. Young, Unpacking Third-Party Standing, 131 Yale L.J. 1, 26 (2021)).

Recall that NetChoice not only brings First Amendment and Fourteenth Amendment

claims on behalf of its member organizations, but it also brings a First Amendment claim on behalf

of the users of those member organizations’ websites and platforms.

1. Constitutional Standing

First, this Court considers whether NetChoice is entitled to bring a suit challenging the Act

at all. The Supreme Court has established an “irreducible constitutional minimum” of standing

containing three elements: (1) an “injury in fact” that is concrete and particularized and actual and

imminent; (2) “a causal connection between the injury and the conduct complained of”; and (3) a

likelihood that the injury will be redressable by the court. Lujan v. Defenders of Wildlife, 504 U.S.

555, 560-61 (1992).

NetChoice seeks to proceed under a now well-worn theory of associational standing.

NetChoice must show that: “(1) its members would have standing to sue in their own right; (2) the

suit seeks to protect interests germane to the association’s purpose; and (3) neither the claim

asserted nor the relief requested requires the individual members of the association to participate

in the lawsuit.” Griffin, 2023 WL 5660155, at *9 (citing Hunt v. Wash. State Apple Advert.

Comm’n, 432 U.S. 333, 343 (1977)).

With respect to the first prong, Attorney General Yost argues that NetChoice fails to show

that any of its members would suffer a First Amendment injury should the Act go into effect and

that, therefore, NetChoice does not have constitutional standing to bring this lawsuit. In Attorney

General Yost’s view, the injury suffered must be a First Amendment injury because this lawsuit

seeks to vindicate First Amendment rights. (ECF No. 28 at 17). NetChoice responds that its

members will suffer economic harms and First Amendment injuries, both of which are

independently sufficient to confer constitutional standing. (ECF No. 29 at 5-7).

Attorney General Yost is incorrect to suggest that NetChoice cannot predicate their

constitutional standing on economic harm. Courts of Appeals that have considered whether

compliance costs confer standing “have uniformly held that compliance costs associated with a

regulatory regime satisfy the injury-in-fact requirement.” Tennessee v. United States Dep’t of

Agric., 665 F. Supp. 3d 880, 898 (E.D. Tenn. 2023) (collecting cases). This is true even when the

underlying claims are non-economic in nature: constitutional standing pertains to whether a litigant

can bring a lawsuit at all, not which claims it can bring. See Griffin, 2023 WL 5660155, at *8

(citing Bradley, Young, Unpacking Third-Party Standing, 131 Yale L.J. at 26).

Virginia v. American Booksellers Ass’n, Inc., 484 U.S. 383, 392 (1988) is instructive.

There, booksellers’ organizations and bookstores challenged the constitutionality of a Virginia

statute that made it a crime “to knowingly display for commercial purpose in a manner whereby

juveniles may examine and peruse” certain adult materials. Id. at 387. The Supreme Court had

no trouble concluding that the plaintiffs in Booksellers had shown an injury-in-fact because the

law was “aimed directly at plaintiffs, who, if their interpretation of the statute [was] correct,

[would] have to take significant and costly compliance measures or risk” enforcement. Id. at 392.

The same is true here. Many of NetChoice’s member organizations would incur substantial

compliance costs should the Act go into effect. (ECF Nos. 2-1 ¶ 14; 2-2 ¶ 13). Each member

organization that believes it would be covered by the Act would need to develop a protocol for the

processing of parental consent notifications in compliance with the Act. Otherwise, each faces the

risk of civil liability to the tune of thousands of dollars a day for each unauthorized minor using

its site. NetChoice argues that the economic risk is particularly acute because the Act is vague,

therefore insufficiently apprising its members as to whether they must comply with it. As a result,

some websites may needlessly accumulate expenditures to comply with the Act, even though the

Attorney General has no intention of enforcing it against them. And for some of these platforms,

the cost of complying with the Act would put them out of business. (ECF No. 2-2 ¶¶ 13-19)

A compliance cost injury alone is sufficient, but NetChoice also argues that its member

organizations’ First and Fourteenth Amendment rights will be violated by the Act. A plaintiff

satisfies the injury-in-fact requirement when it alleges “an intention to engage in a course of

conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists

a credible threat of prosecution thereunder.” MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118,

128-129 (2007). Specifically, NetChoice contends that its members have a well-established First

Amendment right to “disseminate” protected speech by and to minors and adults alike, and a

Fourteenth Amendment right to have laws be reasonably clear about the entities to which they

apply. Attorney General Yost’s arguments that NetChoice’s members’ First Amendment rights

are not threatened are unavailing, for reasons described further below.

The second and third prongs of the associational standing test can be resolved simply. As

NetChoice’s Vice President and General Counsel explains, NetChoice’s purpose is “to make the

Internet safe for free enterprise and free expression.” (ECF No. 2-1 ¶ 3). As a result, this lawsuit

centered on protecting these interests is germane to its purpose. Nor would this lawsuit require

each member of the association to participate, as the nature of the suit is unlikely to require fact-

intensive inquiry of each member. See Griffin, 2023 WL 566015 at *10 (reaching the same

conclusion with respect to a similar lawsuit brought by NetChoice challenging a parental

notification law in Arkansas).1

2. Prudential Standing

Having established that NetChoice has constitutional standing to bring a lawsuit

challenging the Act, this Court considers whether NetChoice is entitled to bring its specific claims.

In other words, whether it has prudential standing. The “prudential standing rule . . . normally bars

litigants from asserting the rights or legal interests of others in order to obtain relief from injury to

themselves.” Warth, 422 U.S. at 509. There are exceptions, however. It is uncontroverted that

NetChoice, a member-based organization, has prudential standing to bring a claim on behalf of its

members. Memphis A. Philip Randolph Inst. v. Hargett, 2 F.4th 548, 557 (6th Cir. 2021) (“There

is no prudential standing bar when member-based organizations advocate for the rights of their

members.”).

What requires closer scrutiny, however, is NetChoice’s attempt to vindicate the First

Amendment rights of minor Ohioans who may wish to access its member organizations’ websites.

In NetChoice v. Griffin, NetChoice brought a lawsuit challenging a similar Arkansas state law that

imposes an age-verification requirement on many of NetChoice’s member organizations. The

district court in Griffin conducted a robust analysis of NetChoice’s standing to advocate on behalf

of minor Arkansans, which this Court finds persuasive. See 2023 WL 5660155, at *10-12.

Specifically, the court analogized NetChoice’s claim on behalf of minor website users to several

Supreme Court cases in which vendors and vendors’ associations challenged legislation that

arguably infringed on the constitutional rights of their customers. See Craig v. Boren, 429 U.S.

1 Having concluded that NetChoice has associational standing to bring this lawsuit, this Court need

not analyze the more fact-intensive question of whether NetChoice also has organizational

standing because it has had to divert its own resources to address issues caused by the Act.

190, 193-95 (1976) (concluding that a beer vendor had standing to challenge Oklahoma’s gender-

based liquor age restrictions); Carey v. Population Services Inter’l, 431 U.S. 678, 682-84 (1977)

(concluding that a contraceptive vendor had standing to challenge a law that restricted the sale of

contraceptives on behalf of its potential customers).

Most on point on this issue is, yet again, Virginia v. American Booksellers Assoc., Inc., 484

U.S. at 393. Like NetChoice, the plaintiffs argued that the law in question violated book buyers’

First Amendment rights. Id. at 389. The Booksellers Court explained that “in the First Amendment

context, ‘[l]itigants . . . are permitted to challenge a statute not because their own rights of free

expression are violated, but because of a judicial prediction or assumption that the statute’s very

existence may cause others not before the court to refrain from constitutionally protected speech

or expression.’” Id. at 393 (quoting Sec’y of State of Maryland v. J.H. Munson Co., 467 U.S. 947,

956-57 (1984)). This is because would-be speakers, like the Ohioan minors here, may choose to

refrain from engaging in protected activity instead of running the risk of challenging the law.

Munson, 467 U.S. at 956. In other words, individuals may succumb to a speech restriction’s

chilling effect. “Society as a whole then would be the loser.” Id.

This exception to the traditional prudential standing rule, sometimes known as the

“overbreadth exception,” Prime Media, Inc. v. City of Brentwood, 485 F.3d 343, 349 (6th Cir.

2007), applies so long as the plaintiff has constitutional standing, specifically, an injury-in-fact.

As established above, NetChoice has constitutional associational standing. In Booksellers, just as

in the case at hand, the legislation was “aimed directly” at the member bookstores (here, the

websites), “who, if their interpretation of the statute is correct, will have to take significant and

costly compliance measures.” 484 U.S. at 393.

Nor is this Court is persuaded that any tension between the interests of minor uses and

NetChoice’s members overwhelms the shared interest that the two groups have in free expression.

Attorney General Yost insists that the interests of members and users are fatally divergent because

the members’ “primary product is their users—including Ohio children—and userdata, not the

content they host.” (ECF No. 28 at 11) (emphasis in original). But even assuming that this

assertion is an accurate characterization of each of NetChoice’s member organizations’ business

models, this Court fails to see how it changes the calculus. In sum, based on the record before this

Court, NetChoice has standing to bring both its claims on behalf of its member organizations and

Ohioan minors.

B. Likelihood of Success on the Merits

Having concluded that NetChoice has standing to bring its claims, this Court turns to the

first—and critically important—preliminary injunction factor: likelihood of success on the merits.

In its Motion, NetChoice mounts a facial challenge to the Act’s constitutionality, or, in the

alternative, an overbreadth challenge. Specifically, NetChoice makes three arguments: (1) that the

Act violates NetChoice’s member organizations First and Fourteenth Amendment rights because

it is so vague that NetChoice’s member organizations do not have fair notice as to whether they

must comply with the Act’s dictates, and if so, how; (2) that the Act imposes impermissible

speaker- and content-based restrictions on First Amendment protected speech; and (3) that the Act

imposes an impermissibly overinclusive and underinclusive ban on minors’ access to First

Amendment protected speech.

1. First Amendment: Restrictions on Protected Speech

a. The Act Regulates Protected Speech

Fundamentally, “the First Amendment bars the government from dictating what we see or

read or speak or hear,” Ashcroft v. Free Speech Coal., 535 U.S. 234, 245 (2002), and protects “the

right to distribute, the right to receive, the right to read and freedom of thought,” Griswold v.

Connecticut, 381 U.S. 479, 482 (1965). Here, NetChoice argues that the Act imposes content and

speaker-based restrictions by discriminating between websites, and by preventing minors from

accessing certain protected content.

Defendant, however, seeks to cast the Act—and this case—as not about the First

Amendment, but about the right to contract. Attorney General Yost argues that the Act regulates

commercial activity and does not regulate speech at all, such that it should only be subject to

rational basis review, an easy hurdle to clear.

Despite the “challenges of applying the Constitution to ever-advancing technology,”

Brown v. Ent. Merchants Ass’n, 564 U.S. 786, 790 (2011), the First Amendment implications of

the Act come into focus when social media operators are thought of as publishers of opinion

work—a newspaper limited to “Letters to the Editor,” or a publisher of a series of essays by

different authors. The analogy is an imperfect one—social media operators are arguably less

involved in the curation of their websites’ content than these traditional examples. But the

comparison helps clarify that the Act regulates speech in multiple ways: (1) it regulates operators’

ability to publish and distribute speech to minors and speech by minors; and (2) it regulates minors’

ability to both produce speech and receive speech. And as NetChoice points out, this Court is

unaware of a “contract exception” to the First Amendment. Indeed, neither party references any

such authority. Like many of NetChoice’s member organizations, a publisher stands to profit from

engagement with consumers. That an entity seeks financial benefit from its speech does not vitiate

its First Amendment rights.

Nonetheless, Attorney General Yost insists that the Act does not regulate speech, simply

the ability of minors to contract, which it argues the State has authority to regulate as commercial

transactions. In support of this proposition, the State cites 44 Liquormart v. Rhode Island, 517

U.S. 484 (1996), a case about commercial speech regulation that provides little support. The case

does not address regulation of commercial activity that does not impinge on speech at all, as

Defendant argues is the case here, but explains that “the State retains less regulatory authority

when its commercial speech restrictions strike at ‘the substance of the information communicated’

rather than the ‘commercial aspect of [it].’” 517 U.S. at 499. Presumably, Defendant wants this

Court to infer from this case that the State retains more regulatory authority here because, in the

State’s view, the Act is a regulation striking at the commercial aspect of the relationship between

social media platforms and their users, not the speech aspect of the relationship. But this Court

does not think that a law prohibiting minors from contracting to access to a plethora of protected

speech can be reduced to a regulation of commercial conduct.

In sum, as NetChoice puts it, the Act “is an access law masquerading as a contract law.”

(ECF No. 29 at 16). That is, the Act does implicate the First Amendment, at least to some degree,

and therefore, is not subject to the deferential rational basis standard of review.

b. The Law is Content Based

Having concluded that the Act does indeed implicate the First Amendment, this Court now

considers whether it should be subject to strict scrutiny or only intermediate scrutiny. Courts

“apply the most exacting scrutiny to regulations that suppress, disadvantage, or impose differential

burdens upon speech because of its content,” but only “an intermediate level of scrutiny” when

“regulations are unrelated to the content of speech.” Turner Broad. Sys. v. FCC, 512 U.S. 622,

642 (1994).2

NetChoice argues that several provisions of the law discriminate based on content, whereas

Defendant argues that the Act is content-neutral and that any effect it has speech is incidental.

When considering whether a regulation is content based, the principal inquiry is whether the

government has regulated the speech because it agrees or disagrees with its communicative

content. Id. at 643. When a law “applies to particular speech because of the topic discussed or the

idea or message expressed” it is content-based on its face. City of Austin v. Reagan Nat’l Advert.

of Austin, LLC, 596 U.S. 61, 69 (2022) (cleaned up). A facially content-based law cannot escape

strict scrutiny, even if it has a “benign motive.” Reed v. Town of Gilbert, 576 U.S. 155, 165-66

(2015). And even if not facially content-based, a law can be content-based in its purpose or

justification. Id. At its core, content-neutrality is about “whether the government has adopted a

regulation of speech because of disagreement with the message it conveys.” Ward v. Rock Against

Racism, 491 U.S. 781, 791 (1989). For example, a law that requires “political signs” to be smaller

than “event signs” is facially content-based and subject to strict scrutiny. Reed, 576 U.S. at 164-

65. It is worth noting that a law that is viewpoint-based—perhaps singling out signs in favor of

2 “Strict scrutiny” requires the government to show that the law at issue is “narrowly tailored to

serve compelling state interests.” KenAmerican Res., Inc. v. United States Sec’y of Lab., 33 F.4th

884, 893 (6th Cir. 2022) (quoting Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015)). On the

other hand, “intermediate scrutiny” validates a law “under the First Amendment if it advances

important governmental interests unrelated to the suppression of free speech and does not burden

substantially more speech than necessary to further those interests.” Id. (quoting Holder v.

Humanitarian L. Project, 561 U.S. 1, 26–27 (2010)).

Republican candidates for office—is a highly disfavored form of content-based regulation. Id. at

168-69. But a law need not discriminate based on viewpoint to be content based. Id.

Other regulations are better described as speaker based. The Supreme Court is “deeply

skeptical of laws that distinguish among different speakers, Nat’l Inst. Of Fam. & Life Advocs. v.

Becerra, 138 S.Ct. 2361, 2378 (2018), but speaker-based restrictions “are not automatically

content based or content neutral,” Schickel v. Dilger, 925 F.3d 858, 876 (6th Cir. 2019). Speaker

based restrictions are suspect only because they are often a proxy or pretext for regulation of

content. Id. But if they distinguish between speakers “based only on the manner in which

speakers transmit their messages to viewers, and not upon the messages that they carry,” they are

subject to only intermediate scrutiny. Turner, 512 U.S. at 645.

NetChoice argues that the Act is facially content based because it targets some websites

while exempting others. Specifically, the Act only purports to govern websites that are targeted

at children, or reasonably anticipated to be accessed by children. § 1349.09(B).3 The Act also

3 “(B) The operator of an online web site, service, or product that targets children, or is reasonably

anticipated to be accessed by children, shall do all of the following:

(1) Obtain verifiable consent for any contract with a child, including terms of service, to

register, sign up, or otherwise create a unique username to access or utilize the online

web site, service, or product, from the child's parent or legal guardian using any of the

following methods:

(a) Requiring a parent or legal guardian to sign and return to the operator a form

consenting to the contract by postal mail, facsimile, or electronic mail;

(b) Requiring a parent or legal guardian, in connection with a monetary transaction,

to use a credit card, debit card, or other online payment system that provides

notification of each discrete transaction to the primary account holder;

(c) Requiring a parent or legal guardian to call a toll-free telephone number

implemented by the operator and staffed by trained personnel;

(d) Requiring a parent or legal guardian to connect to trained personnel by

videoconference;

(e) Verifying a parent’s or legal guardian’s identity by checking a form of

government-issued identification against databases of such information, and

excludes from coverage websites where interaction between users is “incidental to content posted

by an established and widely recognized media outlet, the primary purpose of which is to report

news and current events.” § 1349.09(O).4 Similar is an exemption for websites where interaction

is limited to reviews for “products for sale,” but the Act does not exempt reviews of, for example,

services or art. Id. All of these, NetChoice argues, are content-based restrictions. NetChoice

contends that even if these are just speaker-based restrictions, they cannot be justified without

reference to content, and are therefore, content-based distinctions subject to strict scrutiny.

Schickel, 925 F.3d at 876 & n.2.

Attorney General Yost concedes that the provisions above are speaker-based, but argues

that the Act should, nonetheless, not be subject to strict scrutiny because its speaker-based

distinctions do not disfavor particular communicative content. Instead, Yost argues, the

complained of language simply tailors the Act’s contract regulation mechanism to entities whose

platforms and business practices pose a heightened risk to minors’ privacy, health, and safety.

promptly deleting the parent’s or legal guardian’s identification from the operator’s

records after such verification is complete.

(2) Present to the child’s parent or legal guardian a list of the features offered by an

operator's online web site, service, or product related to censoring or moderating content,

including any features that can be disabled for a particular profile.

(2) Provide to the child's parent or guardian a web site link at which the parent or legal

guardian may access and review the list of features described in division (B)(2) of this

section at another time.”

4 “(O) This section does not apply to an online web site, service, or product respecting which

interaction between users is limited to the following:

(1) Reviewing products offered for sale by electronic commerce or commenting on reviews

posted by other users;

(2) Comments incidental to content posted by an established and widely recognized media

outlet, the primary purpose of which is to report news and current events.”

(ECF No. 28 at 27-28). Specifically, Yost asserts that the legislation is concerned with operators’

release of minors’ personal information and data pursuant to exploitative terms of service,

addictive social media features like “infinite scroll,” increased rates of mental illness in children,

and a risk of exposure to sexual predation on websites that facilitate private messaging between

users. (Id. at 22, 30). These “features and functions,” Defendant argues, are absent or less

threatening on the exempted sites: product review sites and traditional media outlets, where users

are, for example, not able to engage in private chats with other users. (Id. at 31).

Attorney General Yost’s arguments are not wholly without merit. Because speaker-based

distinctions are only subject to strict scrutiny if they are also facially content-based, or content-

based distinctions in disguise, this Court must consider whether the Act’s speaker-based provisions

disfavor the messages that the operators publish, or simply the “manner in which [they] transmit”

those messages. Turner, 512 U.S. at 645, 658 (emphasis added). It is a close call.

Turning first to the language that defines the broad category of operators to which the Act

applies—websites that “target[] children” or are “reasonably anticipated to be accessed by

children”—NetChoice argues that these are transparently content-based restrictions because

whether a website “targets children” is inextricably connected to its content. (ECF No. 29 at 12).

The State argues, on the other hand, that this language is simply an example of tailoring, designed

to prevent overbreadth by exempting websites that are unlikely to be accessed by children. (ECF

No. 28 at 27-28).5

5 A court in the Northern District of California recently considered a similar law that only

applied to websites “likely to be accessed by children.” NetChoice, LLC v. Bonta, No. 22-CV-

08861-BLF, 2023 WL 6135551, at *6 (N.D. Cal. Sept. 18, 2023). There, the court pointed out that

“having to view content to determine whether the statute applies does not by itself mean that the

statute regulates speech,” citing a Ninth Circuit cases where the court concluded a “law classifying

workers as employees or independent contractors based on criteria including whether worker's

output was ‘to be appreciated primarily or solely for its imaginative, aesthetic, or intellectual

Since this language identifies a certain topic, it is tempting to apply strict scrutiny

reflexively, particularly given that facially content-based regulations cannot be rehabilitated by an

apparent benign purpose. Reed, 576 U.S. at 165-66. In Reed, the Supreme Court invalidated a

regulation that treated, for example, “Temporary Directional Signs” differently from “Ideological

Signs.” Id. at 164. The Supreme Court reasoned that the sign code was facially content based

because it discriminated based on communicative content and was, therefore, subject to strict

scrutiny. Id. at 159, 164.

But relevant here is the Supreme Court’s “rejection of the view that any examination of

speech or expression inherently triggers” strict scrutiny. City of Austin, Texas v. Reagan National

Advertising of Austin, LCC, 596 U.S. 61, 69 (2022). That is, a law may still be content neutral,

even if it requires reading the speech at issue to determine if the speech or speaker is covered. Id.

In City of Austin, a sign’s content was only considered to determine whether it was placed on the

premises relevant to its content or placed off those premises. Id. The sign’s location relative to

its content determined the regulation to which it was subject, but the topic was otherwise not

considered. Id. The majority concluded that Austin’s sign regulation was content-neutral because

it did not “single out any topic or subject matter for differential treatment.” Id. at 71.

It is challenging to reconcile City of Austin with Reed. Indeed, Justice Thomas, who wrote

Reed, dissented in City of Austin, saying the majority’s attempt to distinguish Austin’s sign code

from the one in Reed was unworkable. Id. at 91. (Thomas, J., dissenting). In Justice Thomas’s

view, if the message matters at all when applying a regulation, the law is content based. Id. at 92.

content’ did not regulate speech.” Id. (citing Am. Soc’y of Journalists & Authors, Inc. v. Bonta,

15 F.4th 954, 960-61 (9th Cir. 2021)). But this Court has already concluded that the Act regulates

speech in a way that a law seeking to distinguish between, for example, workers for tax purposes

does not. The Act here distinguishes between speakers for purposes of establishing how minors

may access the speech on those platforms.

The Act here certainly requires consideration of the content on an operator’s platform to

determine if it “targets children” or is “reasonably anticipated to be accessed by children.” The

Act’s eleven-factor list attempts to make clear that content is the essential consideration with

respect to whether an operator is covered.6 § 1349.09(C)(1)-(11).7 But Justice Thomas’s more

rigid approach only garnered three votes in City of Austin. The majority’s opinion instead requires

this Court to inquire whether the Act “single[s] out any topic or subject matter for differential

treatment.” City of Austin, 596 U.S. at 71. It does not.

There is no indication that the State disfavors the sort of content designed to appeal to

children—cartoons and the like. “Websites that children might access” is not a topic or subject

matter. Indeed, even though covered platforms contain some subject matter likely to appeal to

children, most also contain subject matter “as diverse as human thought.” Packingham v. North

Carolina, 582 U.S. 98, 105 (2017). The “targets children” or “reasonably anticipated to be

accessed by children” language tailors the Act’s applicability to only the platforms that have a

chance of attracting the children the Act seeks to protect. Sites that are not reasonably likely to be

6 “Attempts to” because the Act remains vague with respect to which operators it regulates, as

discussed further below.

7 (C) In determining whether an operator's online web site, service, or product targets children, or

is reasonably anticipated to be accessed by children, the attorney general or a court may consider

the following factors:

(1) Subject matter;

(2) Language;

(3) Design elements;

(4) Visual content;

(5) Use of animated characters or child-oriented activities and incentives;

(6) Music or other audio content;

(7) Age of models;

(8) Presence of child celebrities or celebrities who appeal to children;

(9) Advertisements;

(10) Empirical evidence regarding audience composition; and

(11) Evidence regarding the intended audience.

accessed by children need not conform with the Act’s dictates. But the Act regulates much more

speech than just speech that targets children. NetChoice has not shown that this language—

“targets children” and “reasonably anticipated to be accessed by children”—are examples of

content-based regulation.

Even more challenging is a question that the parties do not engage with fully: whether the

“features and functions” that characterize social media sites are themselves communicative

content. The State assumes that they are not, repeatedly pressing the argument that the Act does

not regulate content, but just websites that have “features and functions” that harm youth. The

State seems to conceptualize “content” as user-generated content, and it relies on the fact that the

Act does not discriminate between topics about which users post or read. In the State’s view, the

Act simply regulates the manner in which content is conveyed to users, not the message. See

Turner 512 U.S. at 645, 658. NetChoice, on the other hand, suggests that justification based on

“function” necessarily indicates that content-based regulation is afoot. But the fact that some

classifications by “function or purpose” are a proxy for content-based regulation “does not mean

that any classification that considered function or purpose is always content based.” City of Austin,

596 U.S. at 74. It is, unfortunately, not that simple.

At this early juncture, this Court shares the view of a district court in the Western District

of Texas that considered a regulation of major social media websites’ content-moderation

practices. That court—albeit in a different context—reasoned that, “[u]nlike broadband providers

and telephone companies, social media platforms ‘are not engaged in indiscriminate, neutral

transmission of any and all users’ speech.’” NetChoice, LLC v. Paxton, 573 F. Supp. 3d 1092,

1107 (W.D. Tex. 2021) (Pitman, J.), vacated and remanded sub nom. NetChoice, L.L.C. v. Paxton,

49 F.4th 439 (5th Cir. 2022). Many of the operators covered by the Act, “curate both users and

content to convey a message about the type of community the platform seeks to foster and, as such,

exercise editorial discretion over their platform’s content.” Id. at 1108. In other words, they are

not “mere conduits.” Id. at 1107.

Features like “infinite scroll,” which very well may be addicting to minors and adults alike,

are admittedly unlikely to convey messages. But those are not the features that the Act identifies

as hallmarks of the websites it regulates. Instead, the Act covers websites that allow users to:

(a) Interact socially with other users within the confines of the online web site,

service, or product;

(b) Construct a public or semipublic profile for the purpose of signing into and

using the online web site, service, or product;

(c) Populate a list of other users with whom an individual shares or has the ability

to share a social connection within the online web site, service, or product;

(d) Create or post content viewable by others, including on message boards, chat

rooms, video channels, direct or private messages or chats, and a landing page or

main feed that presents the user with content generated by other users.

§ 1349.09(A)(1)(a)-(d). The existence of functionalities allowing users to post, comment, and

privately chat—in other words, to connect socially online—may very well be conveying a message

about “the type of community the platform seeks to foster.” Paxton, 573 F. Supp. 3d at 1108. The

features that the Act singles out are inextricable from the content produced by those features. This

Court therefore finds the Act’s distinction on the basis of these functionalities to be content based.

The exceptions to the Act for product review websites and “widely recognized” media

outlets, however, are easy to categorize as content based. It is noteworthy that the exceptions for

media outlets and product review sites do, in part, define exempted speakers by the fact that

“interaction between users is limited to” public comments. § 1349.09(O). Presumably, the public

nature of comments—as opposed to private chats—reduces the predation risk to minors that

Defendant argues covered operators pose. (See ECF No. 28-4 at 4). Even assuming, however,

that requiring parental approval before a minor can engage in private user interaction is one of the

Act’s goals—and a constitutionally sound one—the exceptions as written still distinguish between

the subset of websites without private chat features based on their content. For example, a product

review website is excepted, but a book or film review website, is presumably not. (ECF No. 29 at

14). The State is therefore favoring engagement with certain topics, to the exclusion of others.

That is plainly a content-based exception deserving of strict scrutiny.8

c. The Act Violates Ohioan Minors’ Rights

NetChoice also argues that the Act merits strict scrutiny because it infringes on minors’

rights to both access and produce First Amendment protected speech.9 Generally, First

Amendment protections “are no less applicable when government seeks to control the flow of

information to minors.” Erznoznik v. City of Jacksonville, 422 U.S. 205, 214 (1975). In other

words, the State does not possess “a free-floating power to restrict the ideas to which children may

be exposed.” Brown, 564 U.S. at 794.

Particularly relevant here is the Supreme Court’s analysis in Brown v. Ent. Merchs. Ass’n,

which invalidated a California regulation prohibiting the sale of violent video games to minors.

There, the Supreme Court reasoned that even if “the state has the power to enforce parental

prohibitions”—for example, enforcing a parent’s decision to forbid their child to attend an event—

“it does not follow that the state has the power to prevent children from hearing or saying anything

without their parents’ prior consent.” Id. at 795 n.3. As the Court explained, “[s]uch laws do not

8 Given that the parties have only mentioned severability in passing, without substantive argument,

this Court declines to sever these troubling exceptions at this stage.

9 This Court does not address NetChoice’s argument that the Act may be atextually interpreted to

require age verification procedures for all users, such that it would potentially also chill adult

speech. (See ECF No. 2 at 14). As NetChoice acknowledges, such an interpretation would be

atextual and Defendant’s counsel assured the court at the Rule 65.1 conference that it did not intend

to enforce an age verification requirement.

enforce parental authority over children’s speech and religion; they impose governmental

authority, subject only to a parental veto.” Id. The Act appears to be exactly that sort of law. And

like content-based regulations, laws that require parental consent for children to access

constitutionally protected, non-obscene content, are subject to strict scrutiny.

d. Strict Scrutiny

Having concluded that NetChoice is likely to succeed on its argument that the Act is a

content-based regulation, this Court considers whether the Act is likely to fail strict scrutiny. Strict

scrutiny is “the most demanding test known to constitutional law,” City of Boerne v. Flores, 521

U.S. 507, 534 (1997), and requires the government to show that the law “furthers a compelling

governmental interest and is narrowly tailored to that end,” Reed, 576 U.S. at 171. In other words,

to survive strict scrutiny, the State must “specifically identify an actual problem in need of solving”

and show that “the curtailment of free speech must be actually necessary to the solution.” Brown,

564 U.S. at 799.

As NetChoice correctly points out, Attorney General Yost toggles between several

different interests in its opposition to NetChoice’s Motion. Defendant argues both that it seeks to

regulate the ability of operators to contract with minors, not to limit minors’ access to expressive

content, (ECF No. 28 at 22, 33), but in the same breath asserts that the State’s compelling interest

is in protecting minors from harms associated with covered operators’ platforms, including mental

health issues, data privacy issues, and sexual predation. (ECF No. 28 at 22, 31). Defendant also

argues that the State has a compelling interest in protecting and advancing parents’ ability to make

decisions about their children’s care and upbringing. (Id. at 22). This Court will address each of

these purported interests in turn.

With respect to minors’ ability to contract with operators, NetChoice asserts that Defendant

“has not identified any harms flowing from contract terms.” (ECF No. 29 at 17). But this is an

overstatement. On several occasions, Defendant cites the risk to minors of “involuntary releases

of personally identifiable and other personal information and data,” and devotes two pages of its

response to troubling terms of service used by Facebook and TikTok. For example, TikTok’s

terms of service give TikTok startling broad permission to use, modify, and reproduce its users’

consent. (ECF No. 28 at 25). Attorney General Yost also points out that courts have enforced

these extensive “click-wrap” terms against minors. (Id.) Whether the State has a “compelling”

interest in protecting children against these harms is less clear. Conclusively, though, the Act is

not narrowly tailored to protect minors against oppressive contracts. The Act regulates access to

and dissemination of speech when it could instead seek to regulate the—arguably

unconscionable—terms of service that these platforms require. The Act is also underinclusive

with respect to this interest. For example, as NetChoice explains, a child can still agree to a

contract with the New York Times without their parent’s consent, but not with Facebook.

Next, Defendant argues that scientific research supports the notion that engagement with

operators’ platforms can have damaging mental health effects, and subject minors to sexual

predation. (ECF No. 28 at 31). Attorney General Yost encloses a report entitled “Social Media

and Youth Mental Health: The U.S. Surgeon General’s Advisory.” (ECF No. 28-2). The report

outlines the potential risk of harm to children and teens from both: (1) exposure to harmful content;

and (2) excessive use perpetuated by the features discussed above like “infinite scrolling.” (Id. at

9-11). But even if protecting children against these harms is a compelling interest, which it very

well may be, see Sable Communications of California, Inc. v. F.C.C., 429 U.S. 115, 126 (1989)

(explaining that “there is a compelling interest in protecting the physical and psychological well-

being of minors”), the Act is not narrowly tailored to those ends. Foreclosing minors under sixteen

from accessing all content on websites that the Act purports to cover, absent affirmative parental

consent, is a breathtakingly blunt instrument for reducing social media’s harm to children. The

approach is an untargeted one, as parents must only give one-time approval for the creation of an

account, and parents and platforms are otherwise not required to protect against any of the specific

dangers that social media might pose. See Brown, 564 U.S. at 802 (concluding that legislation

preventing minors from buying violent video games was “seriously underinclusive” because the

“Legislature is perfectly willing to leave this dangerous, mind-altering material in the hands of

children so long as one parent . . . says it’s OK. . . . That is not how one addresses a serious social

problem.”).

And finally, with respect to the rights of parents, Attorney General Yost fails to distinguish

the State’s purported interest from an analogous—and rejected—state interest in Brown. When

the State of California tried a similar argument—that the legislation prohibiting minors from

purchasing violent video games was “justified in aid of parental authority”—the Supreme Court

noted that it doubted “punishing third parties for conveying protected speech to children just in

case their parents disapprove of that speech is a proper governmental means of aiding parental

authority.” Brown, 564 U.S. at 802. More conclusively, however, the Court detailed a series of

preexisting protections to help parents—just as there are here—such that “filling the remaining

modest gap in concerned parents’ control can hardly be a compelling state interest.” Id. at 803.

And the legislation was also overinclusive, in that it enforced a governmental speech restriction,

subject to parental veto, as opposed to protecting only the interests of genuinely concerned parents.

Id. at 804. That is, some parents simply may not care. Id. The same is true here.

In other words, the Act is either underinclusive or overinclusive, or both, for all the

purported government interests at stake.

2. Due Process: Void for Vagueness

Laws run afoul of the Due Process Clause of the Fourteenth Amendment if they fail to

“give fair notice of conduct that is forbidden or required.” FCC v. Fox Television Stations, Inc.,

567 U.S. 239, 253 (2009). In addition to affording regulated parties notice, precision is also

essential to ensure that laws cannot be enforced in an arbitrary or discriminatory way. Id. The

need for clarity is particularly acute when laws restrict speech. See id. Having concluded above

that the Act does in fact regulate speech, this Court rejects Attorney General Yost’s invitation to

apply a relaxed vagueness standard.

NetChoice identifies several aspects of the Act that this Court finds troublingly vague.

Specifically, the Act purports to apply to operators that “target[] children” or are “reasonably

anticipated to be accessed by children.” § 1349.09(B). On its face, this expansive language would

leave many operators unsure as to whether it applies to their website. The legislature’s apparent

attempt at clarity is also unilluminating. The Act provides an eleven-factor list that the Attorney

General or a court may use to determine if a website is indeed covered, which includes malleable

and broad-ranging considerations like “[d]esign elements” and “[l]anguage.” § 1349.09(C). All

the listed considerations are undefined.

The Act also contains an eyebrow-raising exception for “established” and “widely

recognized” media outlets whose “primary purpose” is to “report news and current events,” the

speaker- and content-based flavor of which are discussed further below. § 1349.09(O)(2). But the

Act also provides no guardrails or signposts for determining which media outlets are “established”

and “widely recognized.” Such capacious and subjective language practically invites arbitrary

application of the law.

Attorney General Yost does not focus his argument on these examples, but instead

highlights aspects of the Act that are more precisely defined. For example, he points to a few of

the eleven factors that are less vague: “[e]mpirical evidence regarding audience composition” and

“[p]resence of child celebrities or celebrities who appeals to children.” (ECF No. 28 at 40 (quoting

§ 1349.09(C)). Defendant Yost also points to the Children Online Privacy Protection Act of 1998

(“COPPA”), a federal regulation that uses some of the same factors to explain which websites or

online services are “directed to children,” and therefore, covered by COPPA. (ECF No. 28 at 40-

41). But he points to no case where a court has concluded that COPPA’s language is not vague,

nor can this Court find one.

These more specific factors and the existence of the COPPA scheme do not cure vagueness

in the eleven-factor list. But even if they did, they do not address the broad-ranging language in

the exceptions. None of these phrases or the definitions in COPPA rehabilitates, for example,

amorphous descriptors like “established” or “widely recognized.”

C. Irreparability of Harm

This Court next considers whether either NetChoice’s members or minor Ohioans will

suffer irreparable harm absent an injunction. See Fed. R. Civ. P. 65(b)(1)(A). Generally, “[a]

plaintiff’s harm from the denial of a preliminary injunction is irreparable if it is not fully

compensable by monetary damages.” Overstreet v. Lexington-Fayette Urb. Cnty. Gov’t, 305 F.3d

566, 578 (6th Cir. 2002).

NetChoice asserts that its members will be irreparably harmed through unrecoverable

compliance costs and the risk of civil liability were the Attorney General to enforce the Act against

them. In particular, NetChoice asserts that its members will need to spend money on engineering

and compliance procedures, among other things, in order to comply with Ohio’s law. For some of

its members, these requirements are extremely burdensome. (See ECF No. 2-2). Although these

are monetary harms, NetChoice persuasively argues that there is no cause of action through which

they could seek to recover those compliance costs.

NetChoice also argues that the Act violates both NetChoice members’ and Ohioan minors’

constitutional rights, and that as a result, they will suffer irreparable harm absent a preliminary

injunction. “When constitutional rights are threatened or impaired,” however, “irreparable injury

is presumed.” Mich. State A. Philip Randolph Inst. v. Johnson, 833 F.3d 656, 669 (6th Cir. 2016)

(cleaned up). In fact, “‘[t]he loss of First Amendment freedoms,” like the ones NetChoice asserts

are violated here, “for even minimal periods of time, unquestionably constitutes irreparable

injury.’” Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 67 (2020) (quoting Elrod v.

Burns, 427 U.S. 347, 373 (1976) (plurality opinion)).

D. Balance of Equities and the Public Interest

The last two factors in the preliminary injunction balancing test merge when the

government is a party. Nken v. Holder, 556 U.S. 418, 435 (2009). Attorney General Yost urges

that the public interest will be served by allowing the law to go into effect and protect minors.

(ECF No. 28 at 42). But as NetChoice correctly points out, “the State has no interest in enforcing

laws that are unconstitutional.” EMW Women’s Surgical Ctr., P.S.C. v. Friedlander, 591 F. Supp.

3d 205, 215 (W.D. Ky. 2022) (cleaned up).

IV. CONCLUSION

For the reasons set forth above, this Court finds the Act unconstitutional and GRANTS

Plaintiff’s Motion for a Preliminary Injunction against Defendant, Attorney General Yost.

Specifically, Defendant remains ENJOINED from implementing and enforcing the Act against

Plaintiff or its member organizations. The bond posted by NetChoice following entry of the

Temporary Restraining Order remains in place.

IT IS SO ORDERED.

be oe Lele

CHIEF UNITED STATES DISTRICT JUDGE

DATE: February 12, 2024

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