NetChoice, LLC v. David Yost

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 26a0177p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

┐

NETCHOICE, LLC,

│

Plaintiff-Appellee, │

> No. 25-3371

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v. │

│

DAVE YOST, in his official capacity as Ohio Attorney │

General, │

Defendant-Appellant. │

┘

Appeal from the United States District Court for the Southern District of Ohio at Columbus.

No. 2:24-cv-00047—Algenon L. Marbley, District Judge.

Argued: February 4, 2026

Decided and Filed: June 18, 2026

Before: BATCHELDER, CLAY, and RITZ, Circuit Judges.

_________________

COUNSEL

ARGUED: Mathura J. Sridharan, OFFICE OF THE OHIO ATTORNEY GENERAL,

Columbus, Ohio, for Appellant. Erin E. Murphy, CLEMENT & MURPHY, PLLC, Alexandria,

Virginia, for Appellee. ON BRIEF: Mathura J. Sridharan, Zachery P. Keller, OFFICE OF THE

OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellant. Scott A. Keller, LEHOTSKY

KELLER COHN LLP, Washington, D.C., for Appellee. Kevin A. Golembiewski, OFFICE OF

THE FLORIDA ATTORNEY GENERAL, Tallahassee, Florida, James Emory Smith, OFFICE

OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South Carolina, Robert

Corn-Revere, D Gill Sperlein, FOUNDATION FOR INDIVIDUAL RIGHTS AND

EXPRESSION, Washington, D.C., Aaron Mackey, ELECTRIC FRONTIER FOUNDATION,

San Francisco, California, for Amici Curiae.

CLAY, J., announced the judgment of the court and delivered the lead opinion.

BATCHELDER, J. (pp. 34–60), concurred in the judgment and delivered a separate concurring

opinion. RITZ, J. (pp. 61–71), delivered a separate dissenting opinion.

No. 25-3371 NetChoice, LLC v. Yost Page 2

_________________

OPINION

_________________

CLAY, Circuit Judge. Defendant David Anthony Yost, the Attorney General of Ohio,

appeals from the district court’s final order and judgment in Plaintiff NetChoice, LLC’s civil suit

challenging Ohio’s Parental Notification by Social Media Operators Act, H.B. 33, 135th Gen.

Assemb., Reg. Sess. (2023) (codified at Ohio Rev. Code § 1349.09), on First Amendment and

vagueness grounds, under 42 U.S.C. § 1983 and 28 U.S.C. § 2201. Because a majority of the

panel agrees that NetChoice has failed to establish that the Act is facially unconstitutional, we

REVERSE the district court’s judgment and REMAND with instructions to enter judgment in

favor of Yost.

I. BACKGROUND

The state of Ohio is concerned that social media is harming Ohio’s youth and has sought

to target that harm through legislative policy. Specifically, Ohio has taken notice of a growing

body of evidence linking social media to poor mental health, eating disorders, and academic

decline in youth and adolescents. The state further worries about the prevalent use of social

media among child sexual predators to target minors, deficient data privacy for minor social

media users, and exploitative contract terms that social media operators impose on them.

Meanwhile, the members of Plaintiff trade association NetChoice, LLC (NetChoice), that own

and operate social media platforms, extoll the virtues of social media and the benefits that it

offers young people, including community-building, artistic expression, education, civic

engagement, awareness of news and current events, and career development. Those entities tend

to resist the legislative efforts of Ohio and other states to curb social media uptake among

minors, asserting that such restrictions violate social media users’ and providers’ First

Amendment rights. See NetChoice v. Carr, 789 F. Supp. 3d 1200, 1212 (N.D. Ga. 2025)

(“A handful of states have enacted [] laws aimed at protecting minors online . . . . NetChoice has

challenged at least eight other state laws[, and n]early all of those state laws [have been] enjoined

. . . .”). Defendant David Yost (Yost), the Attorney General of Ohio, defends Ohio’s Parental

Notification by Social Media Operators Act, H.B. 33, 135th Gen. Assemb., Reg. Sess. (2023)

No. 25-3371 NetChoice, LLC v. Yost Page 3

(codified at Ohio Rev. Code § 1349.09) (the Act), as a legitimate exercise of the state’s

prerogative to regulate contracting with minors. To the extent that the Act does burden any First

Amendment rights, he argues that it is properly tailored to pass constitutional muster.

The evidence that the parties have proffered in this case and on which this opinion relies

shows that social media has become increasingly salient in modern life. Definitions of social

media vary, but generally the term refers to websites, digital applications, and the like that allow

users to “self-present,” interact with one another, generate content, and consume content

published by others. U.S. Surgeon General’s Advisory, Social Media and Youth Mental Health

(2023), Yost Mot. Summ. J. Ex. B [hereinafter Surgeon General], R. 42-2, PageID #510. Social

media uptake is pervasive. Approximately 95% of teenagers aged 13 to 17 use it. Id. at PageID

#493. Data from 2021 reflected that eighth and tenth-graders used social media three and a half

hours per day on average. Id. at PageID #496. One study reported “that, as of 2022, nearly half

of adolescents reported being online ‘almost constantly,’ up from 24% in 2015.” Raffoul et al.,

Social Media Platforms Generate Billions of Dollars in Revenue from U.S. Youth: Findings

from a Simulated Revenue Model, PlosOne (Dec. 27, 2023), Yost Mot. Summ. J. Ex. A

[hereinafter Raffoul], R. 42-1, PageID #482.

The popularity of those platforms seems to come at a cost, as evidence has connected

them to deleterious effects on children’s mental health. Id. For young people, who are at a

pivotal stage in cognitive development, social media has been linked to issues with sleep,

anxiety, body dysmorphia, depression, and bullying. Id.; Surgeon General, PageID #495–96.

Social media affects users through not only the substantive content to which it exposes them, but

also “the amount of time [they] spend on platforms, . . . the activities and interactions social

media affords, and the degree to which it disrupts activities that are essential for health like sleep

and physical activity.” Surgeon General, PageID #494. Features such as “[p]ush notifications,

autoplay, infinite scroll, quantifying and displaying popularity (i.e., ‘likes’), and algorithms that

leverage user data to serve content recommendations . . . maximize engagement.” Id. at PageID

#498. Some research has suggested that social media use may have physiological effects like

those from substance and gambling addictions. Id.

No. 25-3371 NetChoice, LLC v. Yost Page 4

Young people are biologically and psychologically more vulnerable to those dangers than

adults. See Am. Psych. Ass’n, Potential Risks of Content, Features, and Functions: A Closer

Look at the Science Behind How Social Media Affects Youth 1–3 (2024). While much of the

evidence currently available establishes only correlation, some experiments have signaled that

social media is a driver of psychological harm to minors. See Zara Abrams, Instagram’s Effects

on Mental Health, Monitor on Psychology, Mar. 2022, at 32. And while social media may

“benefit[ ]some children and adolescents, there are ample indicators that social media can also

have a profound risk of harm to the[ir] mental health and well-being . . . .” Surgeon General,

PageID #493.

The record additionally reflects that social media imperils children by exposing them to

sexual and financial predators. North Aff., Yost Mot. Summ. J. Ex. D, R. 42-4, PageID #529–

30; Surgeon General, PageID #498. Research shows that a significant number of minors using

social media interact with adult strangers and experience sexual solicitation from, grooming by,

and confidential relationships with those strangers. Parisa Rezaee Borj et al., Online Grooming

Detection: A Comprehensive Survey of Child Exploitation in Chat Logs, Knowledge-Based Sys.,

Jan. 2023, Yost Mot. Summ. J. Ex. H, R. 42-8, PageID #594.

Minors’ attachment to social media is no accident. Social media operators design their

sites to hold users’ attention for as long as possible. See Abrams, supra, at 30; Mark D. Griffiths,

Adolescent Social Networking: How Do Social Media Operators Facilitate Habitual Use?,

36 Educ. & Health 66, 68 (2018); Julian Morgans, The Secret Ways Social Media Is Built for

Addiction, Vice (May 17, 2017, 11:09 PM), https://perma.cc/W3X6-GNX3; Raffoul, R. 42-1,

PageID #483. Young eyes on screens are highly profitable in terms of advertising revenue.

A study from 2023 estimated that Facebook, Instagram, Snapchat, TikTok, Twitter, and

YouTube, collectively, earn $11 billion in revenue from advertising directed to U.S. children

between 0 and 17 years of age and $2 billion in revenue from advertising directed to those 0 to

12 years of age. Raffoul, R. 42-1, PageID #484. Across Snapchat, TikTok, and YouTube, “30–

40% of the advertising revenue” was “attributable to young people.” Id.

To capitalize on users’ engagement, social media companies leverage “personalized

computational advertising to match users’ specific demographics and usage patterns with

No. 25-3371 NetChoice, LLC v. Yost Page 5

advertisers’ financial interests[,]” raising “ ethical concerns regarding the amount of data . . .

require[d] from vulnerable users, such as youth.” Id. at PageID #483; see also Testimony of Tim

Kendall, Chief Exec. Officer, Moment, Hearing on “Mainstreaming Extremism: Social Media’s

Role in Radicalizing America” Before the Subcomm. on Consumer Prot. & Com. of the H.

Comm. on Energy & Com., 116th Cong. (2020) (“[W]e sought to mine as much human attention

as possible and turn into historically unprecedented profits . . . [by] t[a]k[ing] a page from Big

Tobacco’s playbook, working to make our offering addictive at the outset.”); Mike Allen, Sean

Parker Unloads on Facebook: “God only Knows What it’s Doing to Our Children’s Brains,”

Axios (Nov. 9, 2017), https://perma.cc/C4JF-FQB8 (quoting founding president of Facebook as

stating that “the thought process” of the architects of social media applications was

“consciously” to “consume as much of your time and conscious attention as possible” and

“exploit[] a vulnerability in human psychology”).

Yost posits that social media companies’ ability to profit from minors’ engagement

depends in part on those minors’ assent to certain terms and conditions precedent to creating user

accounts. For example, Facebook’s Terms of Service include permissions from the user for

Facebook to “to host, use, distribute, modify, run, copy, publicly perform or display, translate,

and create derivative works of [the user’s] content . . . .” Terms of Service, Meta (Jan. 1, 2025),

https://perma.cc/9AVV-4B4W. They also provide that Meta may “use [the user’s] name and

profile picture and information about actions [the user has] taken on Facebook next to or in

connection with ads, offers, and other sponsored or commercial content . . . .” Id. They disclaim

all liability. Id. And they require users to submit to personal jurisdiction in the U.S. District

Court for the Northern District of California and San Mateo County state court, while reserving

the right for Meta to bring a claim in any competent court with jurisdiction. Id.

NetChoice “is a national trade association of online businesses that share the goal of

promoting free speech and free enterprise on the Internet.” Szabo Decl. Supp. Pl.’s Mot. TRO &

Prelim. J., R. 2-1, PageID #64. Its members (the Members) comprise

a broad array of popular websites, including: Airbnb, Alibaba.com, Amazon.com,

AOL, Dreamwidth, eBay, Etsy, Expedia, Fluid Truck, Google, HomeAway,

Hotels.com, Lime, Lyft, Meta, Nextdoor, Oath, OfferUp, Orbitz, PayPal, Pindrop,

Pinterest, Snap Inc., StubHub, Swimply, TikTok, TravelTech, Travelocity,

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Trivago, Turo, Verisign, VRBO, VSBLTY, Waymo, Wing, X (formerly known as

Twitter), and Yahoo!.

Id. According to NetChoice, some Members’ sites are considered social media sites and others

are not. Many Members “have developed content-moderation policies and other safeguards to

protect minors online[,]” such as limiting account creation to users 13 years of age or older,

moderating the content that minors encounter on the platforms, limiting user speech that

Members consider harmful, and offering tools to parents and guardians to control what their

children can access. Id. at PageID #66.

On July 4, 2023, the governor of Ohio signed the Act into law. Section (A)(1) defines an

Operator as:

any business, entity, or person that operates an online web site, service, or product

that has users in this state and that allows those 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.

Parental Notification by Social Media Operators Act (the Act) § (A)(1), H.B. 33, 135th Gen.

Assemb., Reg. Sess. (Ohio 2023) (codified at Ohio Rev. Code § 1349.09(A)(1)). Basically, the

Act covers any site that allows users in Ohio to interact socially with one another, build profiles,

accumulate social connections, and create or post content that one another can view. Section (B)

of the Act institutes requirements for any such “operator of an online web site, service, or

product that targets [] or is reasonably anticipated to be accessed by [unemancipated] children”

under the age of 16 (Children),1 (a Covered Operator). Ohio Rev. Code §§ 1349.09(A)(2), (B).

Section (C) of the Act provides an optional list of 11 factors to assist in the inquiry of whether a

site targets or is reasonably anticipated to be accessed by Children, namely:

1

Where this opinion refers to “Children,” capitalized, it refers to Children as defined by the Act:

unemancipated children under the age of 16. Where it uses the lower-case term “children,” it refers to children as

commonly understood. That guideline does not apply to quoted material, which reflects the capitalization that

appears in the relevant source.

No. 25-3371 NetChoice, LLC v. Yost Page 7

(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.

Id. § 1349.09(C).

Sections (N) and (O) then exempt from the Act’s coverage any site for which (1) “the

predominant or exclusive function is: (a) Cloud storage or cloud computing services;

(b) Broadband internet access services; [or] (c) Search engine services”, id. § 1349.09(N); or

(2) “interaction between users is limited to” either reviewing and commenting on reviews of

commercial products or “[c]omments incidental to content posted by an established and widely

recognized media outlet, the primary purpose of which is to report news and current events[,]”

id. § 1349.09(O).

The Act requires a Covered Operator to: (1) “[o]btain verifiable consent for any contract

with a child . . . from the child’s parent or legal guardian using any of [several listed] methods”;

(2) “[p]resent to the child’s parent or legal guardian a list of the [Operator’s site’s] features . . .

related to censoring or moderating content”; (3) provide the parent or guardian a link to review

those features at a later time; (4) confirm or verify the parental consent by written mail or

telephone; and (5) in the absence of parental consent, “deny the child access to or use of the

[site.]” Id. §§ 1349.09(B), (D), (E).

The Act provides that “[t]he attorney general shall investigate any noncompliance with

this section in the same manner . . . as in section 1349.191 of the Revised Code.” Id.

§ 1349.09(G). Section 1349.191, in turn, provides, “The attorney general may conduct an

investigation if the attorney general, based on complaints or the attorney general’s own inquiries,

has reason to believe” an entity is noncompliant. Id. § 1349.191(B). In that investigation, “the

attorney general may administer oaths, subpoena witnesses, adduce evidence, and subpoena the

production of any book, document, record, or other relevant matter.” Id. § 1349.191(C). If the

subject of such a subpoena fails to cooperate, the court of common pleas may issue orders

compelling compliance with the subpoena, adjudging the subpoenaed entity in contempt of court,

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or granting injunctive or other relief. Id. § 1349.191(F). The court additionally may impose a

civil penalty on an entity that violates such an order. Id. § 1349.191(G).

“If it appears that an operator . . . failed to comply with [the Act], the attorney general has

the exclusive authority to bring a civil action . . . for appropriate relief including a temporary

restraining order, preliminary or permanent injunction, and civil penalties.” Id. § 1349.09(H).

Then, “[i]f a court finds that an operator . . . entered into a contract with a child without consent

of the child’s parent or guardian, as required by this section, the court shall impose a civil

penalty” of up to $1,000 for each of the first 60 days of noncompliance, up to $5,000 for each

subsequent day of noncompliance up to the 90th day, and up to $10,000 for each subsequent day

of noncompliance after that. Id. § 1349.09(I). A noncompliant Covered Operator is additionally

liable for the Attorney General’s investigation and litigation costs. Id. § 1349.09(K).

The Attorney General must give notice before commencing a civil action only if the

subject Covered Operator is in “substantial compliance[,]” in which case the noticed Covered

Operator has 90 days to cure the violation and document the measures it has taken to prevent

future violations. Id. § 1349.09(M).

The Act took effect on January 15, 2024. Am. Sub. H.B. 33 § 803.380, 135th Gen.

Assemb., Reg. Sess., 2023 Ohio Laws File 8.

On January 5, 2024, NetChoice filed a complaint in the U.S. District Court for the

Southern District of Ohio, under 42 U.S.C. § 1983 and 28 U.S.C. § 2201, suing Defendant Yost

in his official capacity as the Attorney General of Ohio. NetChoice claimed that the Act was

unconstitutional because it “imposes blanket parental-consent requirements for minors to access

and engage in all manner of protected speech across a wide swath of websites[,]” might deter

potential users from creating accounts, discriminates among Operators based on the content of

their speech, and is unconstitutionally vague. Compl., R. 1, PageID #3. NetChoice sought

declaratory relief, an injunction prohibiting enforcement of the Act against NetChoice and its

Members, and attorneys’ fees and costs.

On the same day that NetChoice initiated the lawsuit, it moved the district court for a

temporary restraining order and preliminary injunction prohibiting Yost from enforcing the Act

No. 25-3371 NetChoice, LLC v. Yost Page 9

against NetChoice’s Members. The district court granted both, finding NetChoice likely to

succeed on its First Amendment and vagueness claims. NetChoice, LLC v. Yost, 711 F. Supp. 3d

844, 856–59 (S.D. Ohio 2024); NetChoice, LLC v. Yost, 716 F. Supp. 3d 539, 560–62 (S.D. Ohio

2024). The parties agreed to forego discovery and cross-moved for summary judgment.

On April 16, 2025, the district court entered judgment in favor of NetChoice and enjoined

enforcement of the Act entirely. NetChoice, LLC v. Yost, 778 F. Supp. 3d 923, 959 (S.D. Ohio

2025). It held that NetChoice had prudential standing to assert the rights of Children in Ohio

who use or might use Member sites (Children Users). Id. at 946. The court decided that any

conflicts between NetChoice and Children Users did not pertain to “the right of minors to access

social media platforms without obtaining parental consent.” Id. at 944. The district court

additionally held that the Act was facially unconstitutional because “in every application to a

covered website, the Act raises the same First Amendment issues.” Id. at 947. The Act, the

district court concluded, implicated protected speech, id. at 950, was content-based, id. at 953–

54, required parental consent for Children to access constitutionally protected and non-obscene

content, id.at 954–55, failed strict scrutiny, id. at 957, and was unconstitutionally vague, id. at

957–58. Therefore, NetChoice succeeded on the merits. Finding the other requirements for a

permanent injunction satisfied, the district court awarded NetChoice that relief. Id. at 959.

Yost appeals from that order and judgment.

II. DISCUSSION

Yost raises four issues on appeal. He contends that (1) NetChoice lacks prudential

standing to assert the rights of Members’ Children Users; (2) the district court should not have

granted summary judgment in favor of NetChoice on its First Amendment facial challenge;

(3) the district court should not have granted summary judgment in favor of NetChoice on its

vagueness challenge; and (4) the district court’s relief was overly broad because it invalidated the

entire law and enjoined enforcement universally. NetChoice disagrees in all respects, except that

it does not meaningfully contest that an injunction against enforcement in this case should apply

only to the covered Members.

No. 25-3371 NetChoice, LLC v. Yost Page 10

A. Standing

The parties do not dispute that NetChoice has associational standing to bring this suit on

behalf of its Members, but rather whether NetChoice may assert the rights of third-party

Children Users. According to Yost, NetChoice does not meet the prudential requirements to

represent the First Amendment rights of Children Users because of significant conflicts of

interest between them. NetChoice responds that it does have standing to assert those rights

because enforcement of the Act against Members would violate Children Users’ rights, third-

party standing is permissive in the First Amendment context, and NetChoice’s and Children

Users’ interests are aligned with respect to the issues in this case.

i. Standard of Review

This Court reviews a decision to grant summary judgment on the issue of standing de

novo. Fenner v. Gen. Motors, LLC, 113 F.4th 585, 593 (6th Cir. 2024) (citing B & H Med.,

L.L.C. v. ABP Admin., Inc., 526 F.3d 257, 264 (6th Cir. 2008)).

ii. Analysis

Under Article III of the U.S. Constitution, federal courts’ jurisdiction is “limit[ed] . . . to

‘Cases’ and ‘Controversies.’” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 157 (2014)

(quoting U.S. Const. art. III, § 2). Standing doctrine derives from that limitation and reserves the

judicial process for disputes among litigants as opposed to the kind of lawmaking attendant to

the other branches of government. See id. Article III standing requires a plaintiff to present

“(1) an injury in fact that is both (2) caused by the defendant’s conduct and (3) redressable by a

favorable court decision.” Christian Healthcare Ctrs., Inc. v. Nessel, 117 F.4th 826, 842 (6th

Cir. 2024) (citing Driehaus, 573 U.S. at 157–58). A party seeking summary judgment on the

issue of standing must eliminate any genuine dispute of material fact regarding each element of

standing. Kareem v. Cuyahoga Cnty. Bd. of Elections, 95 F.4th 1019, 1022 (6th Cir. 2024)

(quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992)). On appeal, the parties do not

dispute whether NetChoice has the “irreducible constitutional minimum of standing” to bring

this action on behalf of its Members, based on a theory of associational standing. Lujan, 504

U.S. at 560; see Ass’n of Am. Physicians & Surgeons v. U.S. Food & Drug Admin., 13 F.4th 531,

No. 25-3371 NetChoice, LLC v. Yost Page 11

537 (6th Cir. 2021) (stating the requirements for an organization to sue on behalf of its

members). Therefore, we do not evaluate that theory in this case.

In addition to the Article III requirements, courts have developed prudential limitations

on standing, “as a tool of ‘judicial self-governance.’” See Prime Media, Inc. v. City of

Brentwood, 485 F.3d 343, 349 (6th Cir. 2007) (quoting Warth v. Seldin, 422 U.S. 490, 500

(1975)). Among them is the general rule “preclud[ing] litigation in federal court . . . where

instead of litigating ‘his own legal rights and interests,’ the plaintiff instead purports to ‘rest his

claim to relief on the legal rights or interests of third parties.’” Id. (quoting Warth, 422 U.S. at

499). Generally, parties may not assert the rights of nonparties. Connection Distrib. Co. v.

Reno, 154 F.3d 281, 295 (6th Cir. 1998). That principle is important both because it “frees the

Court . . . from unnecessary pronouncement on constitutional issues [and] . . . premature

interpretations of statutes in areas where their constitutional application might be cloudy” and

“assures the court that the issues before it will be concrete and sharply presented.” Sec’y of State

of Md. v. Joseph H. Munson Co., 467 U.S. 947, 955 (1984) (first quoting United States v. Raines,

362 U.S. 17, 22 (1960); and then citing Baker v. Carr, 369 U.S. 186, 204 (1962)). Moreover, the

third-party rightsholders might have considered reasons for choosing not to assert their rights in

court. See Singleton v. Wulff, 428 U.S. 106, 113–14 (1976) (plurality opinion) (“[I]t may be that

in fact the holders of those rights [] do not wish to assert them . . . .”). For those reasons and

because of the importance of “effective advocacy” for arriving at correct conclusions, courts

should “construe legal rights only when the most effective advocates of those rights are before

them.” Id. at 114; see also Kowalski v. Tesmer, 543 U.S. 125, 129 (2004) (“This rule assumes

that the party with the right has the appropriate incentive to challenge (or not challenge)

governmental action and to do so with the necessary zeal and appropriate presentation.” (citing

Warth, 422 U.S. at 500)).

But courts have made exceptions to that prudential rule. Connection Distrib., 154 F.3d at

295 (citing Edmonson v. Leesville Concrete Co., 500 U.S. 614, 629 (1991)). Third-party

standing is one of them. “A litigant may raise a claim on behalf of a third party if the litigant can

demonstrate that it has suffered a concrete, redressable injury, that it has a close relation with the

third party, and that there exists some hindrance to the third party’s ability to protect his or her

No. 25-3371 NetChoice, LLC v. Yost Page 12

own interests.” Id. (citing Edmonson, 500 U.S. at 629). The litigant must have a relationship to

the rightsholder “such that the litigant is an effective proponent of the rights of the third party

. . . .” Id. (citing Singleton, 428 U.S. at 114–16 (plurality opinion)).

Yost argues that NetChoice and Children Users do not share a sufficiently close

relationship to warrant third-party standing because of a pertinent conflict of interest. NetChoice

cannot effectively advocate on behalf of Children Users, he submits, because NetChoice and its

Members are interested in exploiting minors’ engagement with Members’ sites regardless of

what outcome is in the Children Users’ best interests. Yost is persuasive on that point.

NetChoice has certainly argued for unfettered access to social media for minors. But the Act

intends to mitigate harm to minors associated with increased use of social media and the lopsided

contracts that NetChoice has minors execute before they may enjoy that access. Without

Children Users present in the litigation, we cannot be sure that a well-informed, rational Child

would reject the Act’s protections or advocate for precisely the same contours of First

Amendment doctrine as NetChoice does.

NetChoice leans on Virginia v. American Booksellers Association, 484 U.S. 383 (1988).

NetChoice is correct that a litigant may bring a First Amendment overbreadth challenge that is

based not on the litigant’s own injury but on “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.” Am. Booksellers, 484 U.S. at 392–93 (quoting Munson, 467

U.S. at 956–957). Given the unique concerns about freedom of expression that underlie the First

Amendment, the Supreme Court has loosened the requirements for prudential standing in

overbreadth challenges to allow a litigant to challenge the facial validity of a statute that might

be applied constitutionally to the litigant. Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973)

(quoting Dombrowski v. Pfister, 380 U.S. 479, 486 (1965)). Such leniency in this setting is

grounded in the idea that the harm of muting any protected speech outweighs the risk of

permitting unprotected speech to proceed unrestrained. Id. The concern is the “possibility that,

rather than risk punishment for [] conduct in challenging the statute, [a rightsholder] will refrain

from engaging further in the protected activity” and therefore “[s]ociety as a whole [] would be

the loser.” Munson, 467 U.S. at 956.

No. 25-3371 NetChoice, LLC v. Yost Page 13

But the case law does not establish a simplistic rule that wherever First Amendment

overbreadth questions are concerned, they overshadow all other prudential considerations in the

third-party standing analysis. American Booksellers acknowledged unique concerns that arise in

a First Amendment challenge and gave courts leeway to factor those concerns into the balance,

but the background motivations of the prudential standing doctrine do not evaporate because the

claim derives from the First Amendment.

Our sister circuit’s analysis in Amato v. Wilentz, 952 F.2d 742 (3d Cir. 1991), is helpful.

In that case, the New Jersey Supreme Court’s Chief Justice blocked Warner Brothers from using

state courthouses as a film set. 952 F.2d at 742. In exchange for permission to film, Warner

Brothers had offered a $250,000 donation to the Courthouse Restoration Fund. Id. Essex

County, home to one of the courthouses, sued the Chief Justice, claiming that he had violated

Warner Brothers’ First Amendment rights. Id. The court of appeals held that Essex County

lacked third-party standing to assert Warner Brothers’ First Amendment rights. Id. at 744.

The court reasoned that the Supreme Court precedent on third-party standing had

“(1) identif[ied] factors that are relevant to determining third party standing and (2) render[ed] an

overall balance of factors dispositive.” Id. at 750. Those cases had not dictated bright-line,

obligatory rules. Thus even where the relationship between the litigant and third party is

“analogous” to the relationships in cases where the Supreme Court has found third-party

standing, the “exception . . . should not apply [if] its assumptions do not hold.” Id. at 752. In

Amato, the “critical assumption . . . —namely, an identity of interests—[did] not obtain.” Id.

Warner Brothers might have decided against bringing legal action out of concern that the suit

would fail and “create[e] an undesirable legal precedent[] or backfire in practice.” Id. at 753.

“[A]lthough the County’s advocacy of its own interests ha[d] been quite competent and

extremely vigorous, [the court] fear[ed] that the County may not have adequately advocated

Warner Brothers interests” and thus was “disinclined to allow third party standing . . . .” Id.

Amato did not confront an overbreadth challenge specifically, and the court merely speculated

that “if Essex . . . had brought a challenge to the . . . system, the overbreadth cases might well

counsel in favor of according third party standing.” Id. at 754. But that dictum also suggests

No. 25-3371 NetChoice, LLC v. Yost Page 14

that the cases might not so counsel. In some instances, an overbreadth claim might overcome the

lack of an “identity of interests,” but not always.

In this case, it cannot be predicted or assumed that the Act will chill constitutionally

protected speech among minors in the manner contemplated in American Booksellers. In that

case, booksellers challenged a statute that outlawed the commercial display of “visual or written

material that ‘depicts sexually explicit nudity, sexual conduct or sadomasochistic abuse and

which is harmful to juveniles’” where “juveniles [might] examine and peruse” it. Am.

Booksellers, 484 U.S. at 386 (quoting Va. Code Ann. § 18.2–391(A)). The Court’s worry in that

case was that the statute would chill protected conduct because adult book buyers “would be

reluctant to enter an ‘adults only’ store or section of a store” as would be required under the

statute. Id. at 389; see also Bates v. State Bar of Arizona, 433 U.S. 350, 380 (1977) (“The reason

for the special rule . . . is [that] . . . First Amendment interests are fragile interests, and a person

who contemplates protected activity might be discouraged by the in terrorem effect of the

statute.”). In a sense, the hurdle of obtaining parental consent or the prospect of enhanced

parental oversight might chill Children Users’ speech on social media. But that chill would

appear to be different in kind. Minors are unlikely to be chilled from speaking their minds due to

stigma or because the Act reflects a societal distaste for certain ideas. The Act therefore does not

raise meaningful concerns about muting valuable protected discourse.

That distinction weakens the call to set aside our prudential rules. As in Amato, even

though the plaintiff seeks to assert the First Amendment rights of a non-party at the opposite end

of a speech-related transaction, the lack of “an identity of interests” carries more weight.

952 F.2d at 752. We should not ignore the possibility that Children Users might independently

decide against challenging the Act out of caution against generating unfavorable caselaw or

perpetuating harm to themselves. NetChoice’s most vigorous advocacy for expansive First

Amendment doctrine is not necessarily the most effective advocacy for Children Users’ interests.

Even if a maximalist construction of the First Amendment right were entirely exploitative of and

deleterious to minors, NetChoice would presumably still support it. Therefore, permitting

NetChoice to challenge the facial validity of the Act based on Children Users’ First Amendment

rights would be imprudent.

No. 25-3371 NetChoice, LLC v. Yost Page 15

I read Kowalski v. Tesmer, 543 U.S. 125 (2004), differently from Judge Batchelder and

do not think that it negates the applicability of Amato to this case. First, Kowalski was not a First

Amendment case, and its characterization of that area of law is dicta. Amato, meanwhile, was a

First Amendment case. Second, Kowalski’s reference to third-party standing in First

Amendment cases explains that the close relationship and hindrance requirements have been

lessened in that context. 543 U.S. at 130. That statement is compatible with the use of a more

fluid balancing approach in First Amendment cases. Kowalski’s reasoning would only render the

burden higher for a party to establish third-party standing, so it would not affect the conclusion

that under a looser standard, NetChoice loses.

Referencing cases in which courts have permitted vendors to assert the rights of their

customers, NetChoice argues that not all of a litigant’s interests must be aligned with the third

party’s interests before the litigant may enjoy third-party standing. It says that the conflict

analysis should “focus[] on the nature of the claim asserted.” NetChoice Br. 28 (citation

omitted). That argument fails. First, while not any conflict of interest abrogates third-party

standing, the unique conflict in this case connects distinctly to the right at issue. The claims and

defenses in this case inextricably intertwine NetChoice’s financial and legal incentives with the

significant potential harm to the Children rightsholders, all centered around the core third-party

First Amendment right. The special profitability of minors’ social media habits is, conceivably,

the cause of both the danger that Ohio has identified and NetChoice’s purported interest in the

Children Users’ First Amendment rights. Second, the relationship between NetChoice and

Children Users is not like typical vendor-customer relationships. The customer is not walking

into a vendor’s shop to execute a one-off transaction. Yost has offered evidence that the

transactions at issue involve lopsided and exploitative contracts that initiate enduring

relationships in which Members seek to capture and hold Children Users’ attention for as long as

possible, even if that engagement is harmful.

To be clear, the dynamic before us, wherein the very issues in the case create serious

tension between NetChoice and the Children Users’ interests, is sui generis. Hewing closely to

the facts at hand, I do not expect that future cases in which speaker and platform are better

aligned will result in the same outcome. The premise of this case distinguishes it from others

No. 25-3371 NetChoice, LLC v. Yost Page 16

where the dispute does not so credibly and directly pit the plaintiff’s self-interest against the

third-party’s wellbeing. I do not imply anything, for example, about a doctor’s competence to

assert a patient’s rights, or a school’s ability to assert a student’s. But on these facts, NetChoice

is not the proper party to litigate the rights of Children Users. I would decline to recognize third-

party standing for NetChoice to rest its overbreadth challenge on allegations that the Act violates

Children Users’ First Amendment rights.

B. NetChoice’s First Amendment Challenge

Before us is the district court’s order granting summary judgment to NetChoice on its

facial challenge to the Act. NetChoice, 778 F. Supp. at 931, 936. NetChoice brought both a

traditional facial challenge and, in the alternative, a First Amendment overbreadth challenge. Id.

at 936. To prevail on a traditional facial challenge, a plaintiff must show that the law has no

constitutional applications whatsoever. Moody v. NetChoice, LLC, 603 U.S. 707, 723 (2024).

For a First Amendment overbreadth challenge, courts have lightened the load, allowing a

plaintiff to prevail “if a substantial number of [the law’s] applications are unconstitutional,

judged in relation to the statute’s plainly legitimate sweep.” Ams. for Prosperity Found. v.

Bonta, 594 U.S. 595, 615 (2021) (quoting United States v. Stevens, 559 U.S. 460, 473 (2010)).

“Even in First Amendment cases, facial invalidation is ‘strong medicine that is not to be casually

employed.’” Schickel v. Dilger, 925 F.3d 858, 880 (6th Cir. 2019) (quoting Connection Distrib.

Co. v. Holder, 557 F.3d 321, 336 (6th Cir. 2009) (en banc)); see also Broadrick, 413 U.S. at 613

(“The consequence . . . is that any enforcement of a statute thus placed at issue is totally

forbidden [absent] a limiting construction or partial invalidation . . . . [T]he overbreadth doctrine

. . . has been employed by the Court sparingly and only as a last resort.”).

NetChoice argues, and the district court found, that the First Amendment protects the

speech exchanged on Member sites and that the Act is facially unconstitutional because it

burdens that speech with a content-based parental-consent requirement that fails strict scrutiny.

NetChoice, 778 F. Supp. 3d at 950, 953–55, 957. Yost argues that NetChoice has not established

that the Act is unconstitutional, let alone that it is facially unconstitutional. He submits that the

Act regulates non-expressive conduct, triggering only rational basis review, that even if

No. 25-3371 NetChoice, LLC v. Yost Page 17

heightened scrutiny applies, the Act passes, and that even if it did not, NetChoice has not shown

that the Act’s unconstitutional applications substantially outweigh the constitutional ones.

i. Standard of Review

This Court reviews a grant of summary judgment de novo. Schickel, 925 F.3d at 869

(citing Allied Constr. Indus. v. City of Cincinnati, 879 F.3d 215, 219 (6th Cir. 2018)). Summary

judgment is proper “only if ‘there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.’” Id. (quoting Fed. R. Civ. P. 56). In the event of cross-

motions for summary judgment, the Court “draw[s] all reasonable inferences against the party

whose motion is under consideration.” Id. (quoting McKay v. Federspiel, 823 F.3d 862, 866 (6th

Cir. 2016)).

ii. Analysis

The Act Burdens Protected Speech

The First Amendment to the U.S. Constitution states, “Congress shall make no law . . .

abridging the freedom of speech, or of the press . . . .” U.S. Const. amend I. The Fourteenth

Amendment incorporated that prohibition against the states. Manhattan Cmty. Access Corp. v.

Halleck, 587 U.S. 802, 808 (2019).

The U.S. Supreme Court has recognized that, at least to some degree, social media

encompasses protected speech. See Packingham v. North Carolina, 582 U.S. 98, 102, 108

(2017) (holding that a law prohibiting a person convicted of a sex offense from accessing

Facebook was unconstitutional); Moody, 603 U.S. at 716 (“To the extent that social-media

platforms create expressive products, they receive the First Amendment’s protection.”). Social

media platforms, “in at least some functions, are indeed engaged in expression” such as when

they “make choices about what third-party speech to display and how to display it.” Moody, 603

U.S. at 716. That role is akin to that of “[t]raditional publishers and editors . . . .” Id. at 717.

But not all of a social media platform’s conduct is necessarily expressive; a platform might

merely provide a forum for the public to exchange speech. See id. at 730–31 (analogizing to a

shopping mall that allows the public to distribute handbills on its property and a school hosting

No. 25-3371 NetChoice, LLC v. Yost Page 18

employer interviews). To the extent that a law restricts the expressive functions of social media,

though, it burdens First Amendment-protected speech. See TikTok Inc. v. Garland, 604 U.S. 56,

69 (2025) (per curiam) (“[A]n effective ban on a social media platform with 170 million U.S.

users certainly burdens those users’ expressive activity in a non-trivial way.”).

NetChoice’s theory is that Covered Operators engage in their own protected expression

by curating third-party speech. In fact, the curatorial tools Operators use in that regard, such as

data-based algorithms, are precisely some of the features that seem to be harmful to children.

The selection of content for publication to a User’s feed is the kind of editorial decision-making

that the First Amendment protects.

A Covered Operator may not engage in expression if it, for example, provides a forum

for Users to communicate but does not choose what material to publish or how to display it. Co-

owner of NetChoice Member Dreamwidth Studios, LLC (Dreamwidth), for example, stated that

Dreamwidth “do[es] not offer any algorithmic sorting or display of user timelines that adjusts the

display of content based on a prediction that a particular user will be more or less interested in a

particular piece of content . . . .” Paolucci Decl. Supp. Pl.’s Mot. TRO & Prelim. Inj., R. 2-2,

PageID #76. But Yost does not seriously contest that the Members all curate content to some

degree, so I accept that assumption for the purposes of this opinion.

To the extent that NetChoice’s Members engage in protected expression, the Act burdens

that protected speech. The Act imposes a parental-consent requirement that would inhibit

Covered Operators’ preferred method of disseminating its content. Beyond imposing rules that

Covered Operators must follow, the Act would also conceivably affect the magnitude of the

audience that Members’ speech reaches. Some Children will not be able to obtain parental

consent, and some Children who could obtain it may yield to the additional effort of doing so.

The Act additionally risks chilling Members’ engagement in speech that Children might

reasonably be likely to access, or even speech outside of that category, out of caution. Therefore,

the Act burdens at least some protected speech.

No. 25-3371 NetChoice, LLC v. Yost Page 19

Strict Scrutiny Applies

While “legislatures and agencies . . . will generally be better positioned than courts to

respond to the emerging challenges social-media entities pose[,]” courts must safeguard the

expression that occurs on social media. Moody, 603 U.S. at 716. The government may restrict

protected activities under some circumstances. See Heffron v. Int’l Soc. for Krishna

Consciousness, Inc., 452 U.S. 640, 647 (1981) (“[T]he First Amendment does not guarantee the

right to communicate one’s views at all times and places or in any manner that may be desired.”

(citing cases)). But courts scrutinize “statutes which, although directed at activity with no

expressive component, impose a disproportionate burden upon those engaged in protected First

Amendment activities.” TikTok, 604 U.S. at 67–68 (quoting Arcara v. Cloud Books, Inc., 478

U.S. 697, 703–704 (1986)).

Yost argues that the Court should apply rational basis review because the Act does not

regulate speech. But even if the Act directly regulated only the non-expressive conduct of

contracting, the Act would still burden at least some protected speech. Rational basis review is

reserved for “laws that do not implicate ‘fundamental constitutional rights’ at all.” Free Speech

Coal., Inc. v. Paxton, 606 U.S. 461, 495 (2025) (quoting F.C.C. v. Beach Commc’ns, Inc., 508

U.S. 307, 313 (1993)). Thus, even unintentional effects on speech may require scrutiny more

rigorous than rational basis review.

The level of heightened scrutiny that attaches to a law depends on whether the law is

content-based. Planet Aid v. City of St. Johns, 782 F.3d 318, 326 (6th Cir. 2015). Content

neutrality means neutrality not only as to viewpoint but also as to topic or subject matter. Id. at

326–27 (quoting Consol. Edison Co. of N.Y. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 530, 536

(1980)). The government’s motivation behind a law is the key determinant of content neutrality.

Connection Distrib., 154 F.3d at 290 (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791

(1989)). The government’s stated purpose, however, is not the be-all and end-all. A law

receives strict scrutiny if it facially discriminates based on content, regardless of whether the

legislature had an “[i]llicit legislative intent.” Reed v. Town of Gilbert, 576 U.S. 155, 165 (2015)

(quoting Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 117

(1991)); see also Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 642 (1994) (“[W]hile a

No. 25-3371 NetChoice, LLC v. Yost Page 20

content-based purpose may be sufficient in certain circumstances to show that a regulation is

content based, it is not necessary to such a showing in all cases.”).

Determining whether a law is content-based is nuanced, but generally a law that “focuses

on the noncommunicative aspects of the speech[] and treats speech the same regardless of what

the speech says[ is] content-neutral.” Planet Aid, 782 F.3d at 326 (quoting Eugene Volokh, The

First Amendment and Related Statutes 360 (5th ed. 2014)). A few considerations are:

(1) whether the government enacted the law due to disagreement with the message; (2) whether

the regulation affects the speaker’s “communicative impact”; (3) whether the “predominant

intent” pertained to the content or secondary effects of the speech; and (4) whether the law

“is ‘based on the content of speech’” or is “applicable . . . irrespective of content . . . .” Id. at

326–27 (citing cases). Exceptions in a law “can render [it] content-based to the extent [they]

require[] consideration of the topic or subject matter of the speech to determine whether the

speech qualifies . . . .” Zillow, Inc. v. Miller, 126 F.4th 445, 462 (6th Cir. 2025) (citing Norton

Outdoor Advert., Inc. v. Village of St. Bernard, 99 F.4th 840, 850 (6th Cir. 2024)).

The Act’s parental-consent requirement discriminates based on subject matter. While

Ohio may not have intended to single out any topic or message, the effect of the Act on speakers’

communicative impact facially varies based on the content of the speech. The parental-consent

requirement applies only to Covered Operators, Ohio Rev. Code § 1349.09(B), and the

provisions defining that group are content-based in two ways. First, the coverage definition

advises the Attorney General and courts to consider factors that are undeniably content-focused

to determine whether an Operator’s site “is reasonably anticipated to be accessed by children,”

such as “[s]ubject matter;” “[v]isual content;” “[m]usic or other audio content;” and the

“[p]resence of . . . celebrities who appeal to children . . . .” Id. § 1349.09(C). The Act thus

disfavors subject matter that appeals to Children. Second, the Act excludes from coverage

Operators whose Users interact only in “[c]omments incidental to content posted by an

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

and current events.” Id. §1349.09(O). The Act thus favors news and current events subject

matter. Assessing the applicability of that exception to an Operator requires consideration of the

subject matter of the Operator’s speech. Neither of those provisions focuses purely on

No. 25-3371 NetChoice, LLC v. Yost Page 21

noncommunicative aspects of speech. Although the state’s purpose was not necessarily to

disagree with a particular message, but rather to target the secondary effects of Operators’

speech, the Act applies differently based on the substance of that speech.

Generally, the government may not “restrict expression” based on content, aside from

limited exceptions including obscenity, incitement, and fighting words. Brown v. Ent.

Merchants Ass’n, 564 U.S. 786, 790–91 (2011) (first quoting Ashcroft v. Am. C.L. Union, 535

U.S. 564, 573 (2002); and then citing cases). Otherwise, such restrictions receive strict scrutiny.

Reed, 576 U.S. at 166. The Act is content-based and does not fit within those limited recognized

exceptions. Therefore, strict scrutiny applies.

The Act Survives Strict Scrutiny

Under strict scrutiny, Yost must “prove that the restriction furthers a compelling interest

and is narrowly tailored to achieve that interest . . . .” Reed, 576 U.S. at 171 (quoting Ariz. Free

Enter. Club’s Freedom Club PAC v. Bennett, 564 U.S. 721, 734 (2011)). Narrow tailoring for

strict scrutiny means that the law must be “the least restrictive means” of achieving the objective.

Free Speech Coal., 606 U.S. at 471 (quoting McCullen v. Coakley, 573 U.S. 464, 478 (2014)).

That standard is “demanding[,]” and a law will rarely satisfy it. Brown, 564 U.S. at 799. But it

is not “fatal in fact.” Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 237 (1995) (quoting

Fullilove v. Klutznick, 448 U.S. 448, 519 (1980) (Marshall, J., concurring in judgment)); see

Williams-Yulee v. Fla. Bar, 575 U.S. 433, 437, 444 (2015) (holding that state laws prohibiting

judicial candidates from personally soliciting campaign funds survived First Amendment strict

scrutiny); see also Reform Am. v. City of Detroit, 37 F.4th 1138, 1143, 1155–57 (6th Cir. 2022)

(holding that division of protesting groups based on their viewpoints survived strict scrutiny);

KenAmerican Res., Inc. v. United States Sec’y of Lab., 33 F.4th 884, 887, 893 (6th Cir. 2022)

(holding that a provision of the Federal Mine Safety and Health Act of 1977 satisfied strict

scrutiny); Platt v. Bd. of Comm’rs on Grievances & Discipline of Ohio Sup. Ct., 894 F.3d 235,

241, 261–64 (6th Cir. 2018) (holding that Ohio’s fundraising and advocacy limitations on

judicial candidates satisfied strict scrutiny); Grider v. Abramson, 180 F.3d 739, 742, 749, 751,

753 (6th Cir. 1999) (holding that the content-based elements of an emergency crowd control plan

satisfied strict scrutiny).

No. 25-3371 NetChoice, LLC v. Yost Page 22

Yost asserts that Ohio’s interests underpinning the Act are threefold: protecting children,

involving parents, and regulating contracting with children. The compelling state interest in

protecting children’s physical and psychological welfare is well established. See Sable

Commc’ns of California, Inc. v. F.C.C., 492 U.S. 115, 126 (1989) (“We have recognized that

there is a compelling interest in protecting the physical and psychological well-being of

minors.”) That interest is enough, and due to the nature of the harms at issue, the other two

asserted interests are in service of the first.

NetChoice contends that the state’s power to protect children from harm does not bestow

on the state “a free-floating power to restrict the ideas to which children may be exposed” and

that the causal link between social media use and Yost’s alleged harms is unsupported by

evidence as required under Brown v. Entertainment Merchants Association, 564 U.S. 786 (2011).

NetChoice Br. 53 (quoting 564 U.S. at 794). However, this case differs from Brown.

First, Ohio does not restrict what ideas Operators may circulate to Children. Rather the

Act mitigates the “objective effects” of social media use. Brown, 564 U.S. at 799. In Brown, the

legislation facially blocked minors from purchasing or renting violent video game content. Id. at

789. The Act, by contrast, says nothing about what subject matter Children Users may access.

Second, the state’s supporting evidence in Brown was weaker than Yost’s evidence here.

In Brown, California “acknowledge[d] that it [could ]not show a direct causal link between

violent video games and harm to minors[,]” relied on studies that had “been rejected by every

court to consider them” and most of which “suffer[ed] from significant, admitted flaws in

methodology[,]” and “show[ed] at best some correlation [with] minuscule real-world effects,

such as children’s feeling more aggressive or making louder noises in the few minutes after

playing a violent game . . . .” Id. at 799–800. Yost relies on findings by the Surgeon General

and researchers who have identified a potentially significant connection between social media

and serious harms such as depression and body dysmorphia. Additionally, the evidence in

Brown suggested that the effects of violent video games were materially indistinguishable from

the effects from other sources of violent material. Id. at 800–01. NetChoice has not brought to

our attention evidence that other forms of media have the same negative effects on minors as

social media. The link between social media and minors’ wellbeing seems “neither novel nor

No. 25-3371 NetChoice, LLC v. Yost Page 23

implausible[,]” and therefore Ohio has met the “quantum of empirical evidence needed to satisfy

heightened judicial scrutiny of [its] legislative judgment[] . . . .” OPAWL - Bldg. AAPI Feminist

Leadership v. Yost, 118 F.4th 770, 780 (6th Cir. 2024).

Furthermore, attacks on the strength of Yost’s evidence at most create a dispute of

material fact, which would weigh against summary judgment. See Turner Broad., 512 U.S. at

664–65, 668 (plurality opinion) (vacating summary judgment because “genuine issues of

material fact” remained, including “whether the Government ha[d] adequately shown that the

economic health of local broadcasting [was] in genuine jeopardy and in need of the protections

afforded”).

NetChoice additionally argues that Ohio has not distinguished its interest in parental

oversight from the interest in aiding parental authority that Brown rejected. In Brown, the

Supreme Court stated that the legislation was an imposition of the government’s judgment,

subject to a “parental veto” and “doubt[ed] that punishing third parties for conveying protected

speech to children just in case their parents disapprove of that speech [was] a proper

governmental means of aiding parental authority.” 564 U.S. at 802 & n.3. The interest Yost

articulates in this case takes a subtly different angle. Ohio does not necessarily make

assumptions about parents’ values or aim to enlist parents to prevent their Children from using

social media. Rather Ohio seeks to involve parents because their involvement itself will

inherently mitigate some of the harms of unsupervised social media use.

Finally, NetChoice argues that the Act does not only regulate contracting. But the

purpose of regulating contracting is not invalid or unpersuasive just because the Act burdens

speech as well. NetChoice does not explain why regulating contracting with Children would be

a less than compelling state interest.

As for narrow tailoring, the Act need not be “perfectly drawn[,]” but Yost must show that

the Act advances the government’s compelling interests “without being either too over-inclusive

or under-inclusive.” Platt, 894 F.3d at 256 (quoting Winter v. Wolnitzek, 834 F.3d 681, 692 (6th

Cir. 2016)). The former indicates “infringe[ment] on protected speech beyond the degree

necessary” and “the latter may ‘reveal that a law does not actually advance a compelling interest

No. 25-3371 NetChoice, LLC v. Yost Page 24

. . . .’” Id. (first citing Republican Party of Minnesota v. White, 536 U.S. 765, 775 (2002); and

then quoting Williams-Yulee, 575 U.S. at 449).

Generally, NetChoice states that the Act is not sufficiently tailored because Ohio could

instead give parents more information about the “many existing private tools to help them

oversee their minor children online” and because the Act regulates an overbroad range of

websites and protected speech. NetChoice Br. 57. Yost explains why informing parents about

existing private tools for monitoring their children’s activity would not effectively prevent the

harms that minors face. Children have at their disposal many ways of accessing the internet and

can often do so anonymously, evading their parents’ supervision. Parents may not be able to

keep up with what new social media platforms their children are using, in which case post hoc

knowledge of available tools on a given platform is unhelpful. Prospectively requiring parental

consent before a Child accesses a social media platform mitigates that problem. As for the Act’s

range of covered sites and speech, Yost explains that the provisions that NetChoice complains

are content-based actually narrow the scope of the Act to those sites that are likely to harm

minors under the age of 16.

With respect to the government interest in child welfare, NetChoice argues that the Act is

overbroad because it covers sites that do not employ the features that Yost says are harmful to

children and underinclusive because it permits children to access the purportedly harmful sites if

they have their parents’ consent. That the Act may reach some sites that do not use the features

that Ohio finds harmful does not make it facially invalid, and NetChoice has not clarified which

Members fall into that category. In fact, one has to wonder whether a site that does not use those

features, such as push notifications or data-driven algorithms for displaying content, would even

have constitutionally protected speech in play. Further, the Act should not be deemed fatally

underinclusive simply because it permits Children to access potentially harmful platforms if they

have parental consent. Again, the idea behind the Act seems to be that parental awareness and

involvement will inherently mitigate the dangers of the platforms; Children will not be left to

their own devices, so to speak.

On parental oversight, NetChoice contends that the Act is overinclusive because of the

difficulty of verifying a parent-child relationship to process consent, because Yost has not shown

No. 25-3371 NetChoice, LLC v. Yost Page 25

a real need among parents who wish to monitor their children’s online activity, and because

nonconsent may not always reflect disapproval. First, verifying parental consent will not

necessarily present such a great challenge. Second, parents do not know what they do not know.

Part of the problem that the Act seeks to solve is exactly that lack of awareness among parents.

That Yost has not shown an existing outcry from parents seeking greater control of their

children’s internet use does not undermine the Act’s motivation to better involve parents. The

Act strikes a balance between enlisting parents as a line of defense between Children and social

media and overstepping into the realm of parent-child relationships. Parents who do not wish to

monitor their Children are not obligated to do so beyond giving or withholding consent. And the

Act is not overinclusive because parents may have irrelevant reasons for withholding consent;

the Act would still promote involvement among those parents, which is a positive end unto itself.

On contracting, NetChoice says the Act is overinclusive because it requires the Operator

to bar access entirely absent parental consent, rather than voiding or barring contracts. It is not

clear that the Act actually requires the complete bar of access for a Child to an Operator’s site in

the absence of the Operator’s requiring a contract. Yost stresses, and the language of the Act

plausibly reflects, that the threshold criterion for an Operator to be subject to the Act’s

requirements is that the Operator contracts with Children. “It has long been a tenet of First

Amendment law that in determining a facial challenge to a statute, if it be ‘readily susceptible’ to

a narrowing construction that would make it constitutional, it will be upheld.” Am. Booksellers,

484 U.S. at 397 (first citing Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975); and then

citing Broadrick, 413 U.S. 601). I would adopt Yost’s interpretation of the statute, which is that

Operators may avoid penalties by doing away with their contracting requirements.

NetChoice additionally asserts that the Act is underinclusive because it does not cover all

sites that require a contract for access. The Act targets the social media sites because of the

aggregate threat they pose to minors. That the Act is not focused on a site like The New York

Times does not call the state’s interest into question.

NetChoice attempts to undermine the Act by separating the multiple interests inherent in

the Act’s objectives. But the convergence of those interests is what explains the Act’s design. In

Ohio’s view, the benefits of the Covered Operators’ predatory contracting spur Covered

No. 25-3371 NetChoice, LLC v. Yost Page 26

Operators to implement features that are dangerous for minors and avert parental oversight. The

more that minors use the platforms, the more lucrative data Covered Operators can harvest and

advertising they can sell. The Act works by promoting parental oversight as a hurdle to

contracting. Ohio need not tailor the Act to each interest separately, in disregard of context.

At bottom, the Act imposes a parental consent requirement. That requirement constitutes

a marginal burden that precisely targets the multi-faceted problem that Ohio has identified:

Children’s unsupervised assent to terms and conditions for use of platforms that take advantage

of and harm them. Parental consent will not always be narrowly tailored to the compelling

interest in protecting minors’ wellbeing. It works here because the nature of the harm itself is

that Children’s unsupervised use of social media puts them at risk of the adverse effects of

prolonged and unregulated exposure. That premise differs from a case where parental consent is

a tool to impose a value judgment about subject matter, subject to a parental veto. This opinion

does not endorse states’ ability, for example, to censor information about American history or

medical services. In this case, though, NetChoice has not shown that the Act’s parental-consent

requirement violates its Members’ First Amendment rights, let alone that the Act violates the

First Amendment on its face.

Judge Batchelder’s view, as I understand it, is that we should not reach the substantive

merits of NetChoice’s First Amendment claim because NetChoice had to set up Moody’s facial

challenge framework as a threshold matter. But the analysis is not necessarily required to

proceed in that order. Because I do not think that NetChoice’s arguments prevail in establishing

any unconstitutional applications of the Act, a fortiori NetChoice has not shown that the

unconstitutional applications outweigh the constitutional ones, no matter the scope. In fact, in

Moody, after establishing the path that the lower courts must follow, the Court proceeded to

analyze the merits of the Texas statute in question and concluded that it would not pass First

Amendment scrutiny. 603 U.S. at 726–40. Moody did not conduct that same analysis for the

Florida statute, seemingly because the Eleventh Circuit had independently arrived at the

conclusion that the Florida statute violated the First Amendment. See id. at 722. The Court

remanded because, given that the laws had at least some unconstitutional applications, a full

No. 25-3371 NetChoice, LLC v. Yost Page 27

facial analysis was appropriate. In this case, because NetChoice’s First Amendment arguments

fail anyway, a fuller record of the Act’s scope would serve no purpose.

C. NetChoice’s Vagueness Challenge

The district court held that the Act’s coverage provisions are unconstitutionally vague.

NetChoice, 778 F. Supp. 3d at 957–58. Specifically, it took issue with Section (B), which

imposes the Act’s requirements on “operators that ‘target[ ] children’ or are ‘reasonably

anticipated to be accessed by children[,]’” id. at 957 (first alteration in original) (quoting Ohio

Rev. Code § 1349.09(B)), Section (C)’s “eleven-factor list that the Attorney General or a court

may use to determine if a website is indeed covered” by Section (B), id. (quoting Ohio Rev.

Code § 1349.09(C)), and Section (O)’s “exception for ‘established’ and ‘widely recognized’

media outlets whose ‘primary purpose’ is to ‘report news and current events,’” id. (quoting Ohio

Rev. Code § 1349.09(O)(2)). Yost argues that the Act is not unconstitutionally vague because it

uses plain, objective terms and provides a grace period for Covered Operators to correct

mistakes. NetChoice maintains that the district court correctly granted summary judgment in its

favor on this issue.

i. Standard of Review

We review de novo the district court’s grant of summary judgment to NetChoice on its

vagueness claim, “drawing all permissible inferences in favor of” Yost. Platt, 894 F.3d at 246

(citing Rose v. State Farm Fire & Cas. Co., 766 F.3d 532, 535 (6th Cir. 2014)). “[S]ummary

judgment is appropriate when ‘there is no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.’” Byrd v. Tenn. Wine & Spirits Retailers Ass’n, 883

F.3d 608, 613 (6th Cir. 2018) (quoting Fed. R. Civ. P. 56(a)), aff’d sub nom. Tenn. Wine &

Spirits Retailers Ass’n v. Thomas, 588 U.S. 504 (2019).

No. 25-3371 NetChoice, LLC v. Yost Page 28

ii. Analysis

The “fundamental principle” undergirding constitutional vagueness challenges is that

“laws which regulate persons or entities must give fair notice of conduct that is forbidden or

required.” F.C.C. v. Fox Television Stations, Inc., 567 U.S. 239, 253 (2012). That requirement

is integral to due process. Id.

[T]he void for vagueness doctrine addresses at least two connected but discrete

due process concerns: first, that regulated parties should know what is required of

them so they may act accordingly; second, precision and guidance are necessary

so that those enforcing the law do not act in an arbitrary or discriminatory way.

Id. “Rigorous adherence” to those demands is essential when “ambiguity” threatens to “chill

protected speech.” Id. at 253–54.

To prevail on its vagueness claim, NetChoice “must show either that the [Act] (1) ‘fail[s]

to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it

prohibits’ or (2) ‘authorize[s] or even encourage[s] arbitrary and discriminatory enforcement.’”

Platt, 894 F.3d at 246 (quoting Hill v. Colo., 530 U.S. 703, 732 (2000)). “While ‘a more

stringent vagueness test should apply’ to laws abridging the freedom of speech, that standard is

relaxed” where the challenged law “imposes civil rather than criminal penalties and includes an

implicit scienter requirement.” Id. (quoting Vill. of Hoffman Ests. v. Flipside, Hoffman Ests.,

Inc., 455 U.S. 489, 499 (1982)). “[A] statute will be struck down as facially vague only if the

plaintiff has demonstrate[d] that the law is impermissibly vague in all of its applications.”

Libertarian Party of Ohio v. Husted, 751 F.3d 403, 422 (6th Cir. 2014) (alterations in original)

(quoting Green Party of Tenn. v. Hargett, 700 F.3d 816, 825 (6th Cir. 2012)).

We look to the language of the Act to assess whether it provides sufficient notice of what

it proscribes. Platt, 894 F.3d at 246 (quoting Grayned v. City of Rockford, 408 U.S. 104, 110

(1972)). “[M]athematical certainty” is not required, and “flexibility and reasonable breadth” are

not fatal to a statute’s clarity. Id. at 246–47 (quoting Grayned, 408 U.S. at 110). If the words in

the statute are commonly understood, they need not be defined. Id. at 247 (quoting United States

v. Hollern, 366 F. App’x 609, 612 (6th Cir. 2010)). If, however, the Act “forbids or requires the

doing of an act in terms so vague that men of common intelligence must necessarily guess at its

No. 25-3371 NetChoice, LLC v. Yost Page 29

meaning and differ as to its application, [it] violates . . . due process of law.” McGlone v. Cheek,

534 F. App’x 293, 297 (6th Cir. 2013) (quoting Connally v. Gen. Const. Co., 269 U.S. 385, 391

(1926)). The U.S. Supreme Court has struck down statutes that contain “wholly subjective

judgments without statutory definitions, narrowing context, or settled legal meanings.” United

States v. Williams, 553 U.S. 285, 306 (2008).

The stricter First Amendment standard applies to the Act, given that it implicates at least

some Members’ protected speech and that the burden of compliance or fear of repercussions

could chill that speech. See McGlone, 534 F. App’x at 298 (“[U]ncertain meanings inevitably

lead citizens to ‘steer far wider of the unlawful zone’ . . . than if the boundaries of the forbidden

areas were clearly marked.” (quoting Grayned, 408 U.S. at 109)). However, given that the Act

provides for only civil penalties and not criminal punishment, the standard is somewhat relaxed.

For some Operators, a person of ordinary intelligence might not understand what the Act

requires, and determining whether they fall within the coverage definition will be a subjective

and unpredictable endeavor. There is no bright line between the subject matter, advertisements,

or celebrities, for example, that draw the attention of Children and those that do not. As

NetChoice argues, the Act cover sites that are reasonably anticipated to be accessed by Children,

based on optional “vague, subjective, or [] broad” factors. NetChoice Br. 72. Similarly, the

exemption of “established and widely recognized media outlet[s]” might be vague as applied to

some hypothetical Operators. Ohio Rev. Code § 1349.09(O).

Yost points out that the Act’s factors track those that appear in the regulations under the

federal Children’s Online Privacy Protection Act (COPPA), 15 U.S.C. §§ 6501–06, which

requires operators of sites that are directed to children under 13 years of age and that collect

personal information from children to obtain verifiable parental consent before doing so.

15 U.S.C. §§ 6501(1), 6502(b)(1)(A). A regulation under COPPA instructs the Federal Trade

Commission to determine whether a site is directed to children based on criteria that match the

Act’s factors almost exactly. The list includes:

subject matter, visual content, use of animated characters or child-oriented

activities and incentives, music or other audio content, age of models, presence of

child celebrities or celebrities who appeal to children, language or other

No. 25-3371 NetChoice, LLC v. Yost Page 30

characteristics of the website or online service, . . . advertising[, and] . . .

empirical evidence . . . .

16 C.F.R. § 312.2. But Yost does not explain why the resemblance of the Act to federal law

makes the Act less vague. Furthermore, the list of factors in the Act is non-exhaustive, so the

Attorney General and the courts might even consider other factors an Operator could not predict.

Therefore, in some instances, the Act’s language might go beyond flexibility and commonly

understood terms to the point where further definition would be necessary to understand whether

the Act applies. In those instances, the Act may be vague.

For many Operators, though, the coverage provisions will not be vague at all. In fact, it

is unlikely that an Operator within the scope of the Act’s threshold definition would find

Section (B), (C), or (O) to be vague in application. According to Section (A)(1), the Act reaches

only those Operators of products that facilitate social interaction and creation of personal

profiles, networks, and shareable content. In a phrase, it covers social media companies.

NetChoice offers no example of an Operator that is covered under Section (A)(1) and yet

credibly uncertain as to whether it is reasonably anticipated to be accessed by Children, as

provided in Sections (B) and Section (C).

Several Members that believe the Act regulates them deliberately target Children,

mitigating any alleged vagueness in Sections (B) and (C). For example, Goodreads, a “site for

readers and book recommendations[,]” candidly anticipates use by Children. Roin Decl. Supp.

Pl.’s Mot. TRO & Prelim. Inj., R. 2-3, PageID #88. It “facilitates discussion . . . among teen

readers (including teens between 13 and 16)” and features the young adult genre of books

“written for, published for, or marketed to adolescents and young adults, roughly ages 13 to 18.”

Id. at PageID #89 (citation omitted). Operators like TikTok and YouTube, which have specific

services and policies for minors younger than 13, clearly anticipate being accessed by Children.

None of those Operators can seriously maintain that they are unsure whether they are reasonably

anticipated to be accessed by Children.

Similarly, an Operator whose purpose is to report news and current events may struggle

to understand whether it is sufficiently “established and widely recognized” to be exempt under

Section (O), but any such borderline site that comes to mind would not pass the threshold

No. 25-3371 NetChoice, LLC v. Yost Page 31

coverage description of Section (A)(1). To use specific examples from the record, Breitbart or

the Onion might not know whether they are excluded under Section (O), but they do not seem to

be covered as social media Operators under Section (A)(1) in any event. Conversely, X

(formerly Twitter) and Facebook might consider themselves to be news sources, but they would

not be exempt under Section (O) because “interaction between users is [not] limited to . . .

[incidental c]omments . . . .” Id. § 1349.09(O). And the exclusion certainly would not be vague

for an Operator whose purpose is unrelated to news and current events, like Dreamwidth.

NetChoice’s other point about vagueness is that the Act delegates too much discretion to

the Attorney General. To evaluate that argument, we consider the Act “collectively” to

determine whether it “provide[s] explicit standards guiding [its] enforcement.” Platt, 894 F.3d at

252 (alterations in original) (quoting United Food & Com. Workers Union, Local 1099 v. Sw.

Ohio Reg’l Transit Auth., 163 F.3d 341, 359 (6th Cir. 1998)). If the Act “fails to constrain” the

Attorney General’s “‘decision to limit speech’ with ‘objective criteria[, it]’ is unconstitutionally

vague.” Miller v. City of Cincinnati, 622 F.3d 524, 539 (6th Cir. 2010) (quoting United Food &

Com. Workers, 163 F.3d at 359). For example, a prohibition on advertisements that are

“controversial” or not “aesthetically pleasing” may be unconstitutionally vague “without any

further guidance” because it gives officials discretion to disallow advertisements based on their

subjective opinions. Id. at 539–40 (quoting United Food & Com. Workers, 163 F.3d at 359–60).

The Act’s language and enforcement mechanisms risk arbitrary or discriminatory

enforcement to some extent. The Attorney General has authority to investigate an Operator if he

“has reason to believe” it is noncompliant. Ohio Rev. Code § 1349.191(B). He then may bring a

civil action “[i]f it appears that an operator . . . failed to comply . . . .” Id. § 1349.09(H). Those

enforcement provisions give the Attorney General significant discretion. But that discretion is

curtailed because a court will only impose civil penalties for noncompliance if the “court finds

that” a Covered Operator “entered into a contract with a child without consent of the child’s

parent or guardian . . . .” Id. § 1349.09(I). Even the costs of cooperating with the Attorney

General’s investigation, though, such as the time and expense of producing witnesses and

evidence, all at the discretion of the Attorney General, raise some concern.

No. 25-3371 NetChoice, LLC v. Yost Page 32

Yost argues that where an Operator is confused about the requirements of the Act, the

safe harbor provision mitigates any risk of mistake. But the safe harbor is not all that helpful.

The provision states, “If an operator is in substantial compliance with this section, the attorney

general shall provide written notice to the operator before commencing a civil action” and give

the Operator 90 days to “[c]ure[] the violation” and “[p]rovide[] the attorney general with written

documentation that the violation has been cured and that the operator has taken measures

sufficient to prevent future violations.” Id. § 1349.09(M). But that provision only saves an

Operator that is substantially compliant, which would mean that the Operator understood that it

was covered and undertook the efforts mandated by the Act. Furthermore, “substantial

compliance” is undefined. A person of ordinary intelligence would not necessarily understand

how compliant an Operator would need to be to avoid being haled into court.

Again, in some cases, discretion is not an issue. The Act’s standards are not entirely

open-ended, free-floating value judgments. They do not ask whether the Operator’s content is

“controversial” or “aesthetically pleasing.” Although perhaps blurry at the edges, the objective

standard of whether the Operator targets or is reasonably likely to be accessed by Children

tethers the Attorney General’s inquiry. For a Covered Operator that clearly targets Children and

clearly has not implemented the Act’s requirements, the Act is not unconstitutionally vague.

That Operator would clearly fit within the criteria regardless of the Attorney General’s subjective

understanding of the full breadth of the Act’s coverage. NetChoice has not shown that the Act is

impermissibly vague in all of its applications or even in its application to all of the Members.

Therefore, summary judgment in favor of NetChoice on its void-for-vagueness claim was

improper. See Platt, 894 F.3d at 251 (“[A]lmost any criminal or civil prohibition is susceptible

to clever hypotheticals testing its reach.”).

III. CONCLUSION

NetChoice does not have third-party standing to assert the rights of its Members’ minor

users and has otherwise failed to show why Ohio’s Parental Notification by Social Media

Operators Act, Ohio Rev. Code § 1349.09, facially violates the U.S. Constitution. The Act is

content-based and deserves strict scrutiny but is narrowly tailored to compelling state interests

and is not impermissibly vague. Judge Batchelder agrees that NetChoice lacks third-party

No. 25-3371 NetChoice, LLC v. Yost Page 33

standing and that NetChoice has failed to meet its burden on the constitutional challenges, but

would resolve the facial First Amendment challenge based on Moody, without reaching the

merits. Judge Ritz thinks that NetChoice does have third-party standing and that the Act fails

strict scrutiny, and therefore he does not reach the vagueness issue. Given Judge Batchelder’s

and my limited consensus that Yost has prevailed, we REVERSE the district court’s judgment

and REMAND with instructions to enter judgment in favor of Defendant Yost. We therefore

need not reach the issue of the scope of the district court’s injunction.

No. 25-3371 NetChoice, LLC v. Yost Page 34

_________________

CONCURRENCE

_________________

ALICE M. BATCHELDER, Circuit Judge, concurring in the judgment. In 2023, Ohio

passed the Parental Notification by Social Media Operators Act (“The Act”), codified at Ohio

Rev. Code § 1349.09, in response to what it considered to be ongoing, substantial harm to minors

from their social-media use. At root, The Act requires that a covered website operator must

obtain parental consent before any unemancipated minor under the age of sixteen may “register,

sign up, or otherwise create a unique username to access or utilize” the website. See id.

§ 1349.09(B)(1). NetChoice, LLC, a trade association including several prominent social-media

operators, sued Ohio Attorney General David Yost to enjoin his enforcement of The Act.

NetChoice contends that The Act facially abridges the freedom of speech and facially violates

the “void for vagueness” doctrine.

The district court granted summary judgment in NetChoice’s favor and permanently

enjoined enforcement of The Act. NetChoice, LLC v. Yost, 778 F. Supp. 3d 923, 959 (S.D. Ohio

2025). Finding that The Act restricted speech and applying strict scrutiny, the court held that

The Act violated the First Amendment rights of NetChoice’s members and NetChoice’s

members’ potential minor users. Id. at 947–57. The district court also held that The Act’s

purported vagueness ran afoul of the Fourteenth Amendment’s Due Process Clause. Id. at 957–

58.

The record below supports neither conclusion. First, NetChoice failed to satisfy its

burden in raising a facial challenge to The Act. See Moody v. NetChoice, LLC, 603 U.S. 707,

725 (2024). Second, NetChoice’s facial-vagueness challenge fails because the purportedly

vague provisions are either not vague or not vague as applied to NetChoice’s members.

My colleagues’ opinions apply First Amendment strict scrutiny to The Act, though they

disagree on whether the Act survives that level of scrutiny. While I seriously question whether

strict scrutiny is appropriate in this case, I do not reach the merits of NetChoice’s First

Amendment claim because NetChoice does not meet its prerequisite burden in facially

No. 25-3371 NetChoice, LLC v. Yost Page 35

challenging The Act. And while I agree with Judge Clay that NetChoice’s facial-vagueness

challenge fails (Judge Ritz does not reach the issue), I do so with different reasoning. So, I join

in the judgment to REVERSE the district court’s judgment and REMAND with instruction to

enter judgment in favor of Yost.

I.

In the proceedings below, the parties “agreed to forego discovery,” agreed “not [to] rely

on expert testimony,” and “stipulate[d] that the evidence . . . submitted with their respective

[preliminary-injunction] briefing . . . is admissible.” Yost, 778 F. Supp. 3d at 959. I therefore

consider the stipulated factual record from the preliminary-injunction stage, as well as the

parties’ supplemental materials from their summary-judgment briefing.

A. Social Media and Minors

When Ohio passed The Act in 2023, it joined a growing list of states concerned about

their minor residents’ wellbeing as social media becomes an ever more pervasive part of those

minors’ lives.1 Yost identifies three main categories of harm to minors connected to social-

media use: (1) poor health and behavioral outcomes, including increased rates of depression,

suicide, self-harm, bullying, eating disorders, academic decline, and addiction; (2) online and

offline sexual abuse; and (3) onerous, privacy-minimizing contractual relationships between

minors and social-media companies. See Aff. of Ohio Lt. Gov. Jon Husted, R. 42-5, PageID

534. Yost asserts a “compelling interest in protecting minors from these and all other harmful

effects” of social-media use, as well as a compelling interest “in protecting parents’ rights and

abilities to make decisions that are in the best interest of their children.” Id.

1

See, e.g., NetChoice, LLC v. Fitch, 606 U.S. ---, 145 S. Ct. 2658 (2025) (Mississippi); Computer &

Commc’ns Indus. Ass’n v. Uthmeier, No. 25-11881, 2025 WL 3458571 (11th Cir. Nov. 25, 2025) (Florida);

NetChoice, LLC v. Bonta (Bonta II), 170 F.4th 744, (9th Cir. 2026) (California); Computer & Commc’ns Indus.

Ass’n v. Paxton, 747 F. Supp. 3d 1011 (W.D. Tex. 2024) (Texas); NetChoice, LLC v. Reyes, 748 F. Supp. 3d 1105

(D. Utah 2024) (Utah); NetChoice, LLC v. Griffin, No. 5:23-CV-5105, 2025 WL 978607 (W.D. Ark. Mar. 31, 2025)

(Arkansas); NetChoice v. Skrmetti, No. 3:24-CV-01191, 2025 WL 1710228 (M.D. Tenn. June 18, 2025)

(Tennessee); NetChoice v. Carr, 789 F. Supp. 3d 1200 (N.D. Ga. 2025) (Georgia); NetChoice v. Weiser, 808 F.

Supp. 3d 1223 (D. Colo. 2025) (Colorado); NetChoice v. Brown, No. CV RDB-25-0322, 2025 WL 3267786 (D. Md.

Nov. 24, 2025) (Maryland); NetChoice v. Murrill, No. CV 25-231-JWD-RLB, 2025 WL 3634112 (M.D. La. Dec.

15, 2025) (Louisiana); NetChoice, v. Jones, No. 1:25-CV-2067 (PTG/LRV), 2026 WL 561099 (E.D. Va. Feb. 27,

2026) (Virginia).

No. 25-3371 NetChoice, LLC v. Yost Page 36

By way of proof, Yost points in part to a 2023 U.S. Surgeon General’s Advisory entitled

“Social Media and Youth Mental Health” (the “SG Advisory”). R. 42-2, PageID 490.

Describing “the effects of social media on youth mental health” as a “significant public health

challenge[] that require[s] the nation’s immediate awareness and action,” the SG Advisory relies

heavily on “meta-analyses and systemic literature reviews.” Id., PageID 492. Some of the SG

Advisory’s warnings are pure statistical assessments: “Up to 95% of youth ages 13–17 report

using a social media platform, with more than a third saying they use social media ‘almost

constantly.’” Id., PageID 493. “[N]early 40% of children ages 8–12 use social media.” Id.

“[A]ccording to a survey of 8th and 10th graders, the average time spent on social media is 3.5

hours per day, 1-in-4 spend 5+ hours per day[,] and 1-in-7 spend 7+ hours per day on social

media.” Id., PageID 499. “On a typical weekday, nearly 1-in-3 adolescents report using screen

media until midnight or later.” Id. Prevalent social-media use by minors is also reflected in

other research articles proffered by Yost. One study estimates that, in 2022, YouTube had 31.5

million users under the age of 13 and 18.4 million users aged 13 to 17. Raffoul Study, R. 42-1,

PageID 484. In the same year, Twitter and Facebook had an estimated 7 million and 9.9 million

users under the age of 18, respectively. Id. The same study estimates that “Instagram, Snapchat,

and TikTok had an average of nearly 18 million users under the age of 18 years.” Id.

Beyond these statistics, Yost presents evidence linking social-media use and adverse

mental and behavioral health outcomes. The SG Advisory identifies multiple studies to this

effect: See, e.g., R. 42-2, PageID 495 (“A longitudinal cohort study of U.S. adolescents aged 12–

15 (n=6,595) that adjusted for baseline mental health status found that adolescents who spent

more than 3 hours per day on social media faced double the risk of experiencing poor mental

health outcomes including symptoms of depression and anxiety.”). The kinds of research

analyzed by the Surgeon General range from correlation studies, see id., PageID 496 (citing “a

study conducted among 14-year-olds (n = 10,904) [that] found that greater social media use

predicted poor sleep, online harassment, poor body image, low self-esteem, and higher

depressive symptom scores with a larger association for girls than boys”), to surveys, see id.,

PageID 498–99 (discussing youth surveys indicating that “one-third or more” of “girls aged 11–

15” “say they feel ‘addicted’ to a social media platform” and that “[o]ver half of teenagers report

that it would be hard to give up social media”), to randomized, controlled experiments, see id.,

No. 25-3371 NetChoice, LLC v. Yost Page 37

PageID 496 (citing a “randomized controlled trial among young adults and adults [that] found

that deactivation of a social media platform for four weeks improved subjective well-being . . .

by about 25–40% of the effect of psychological interventions like self-help therapy, group

training, and individual therapy”). Yost’s record provides evidence that “frequent and

problematic social media use” is linked to “changes in brain structure similar to changes seen in

individuals with substance use or gambling addictions.” Id., PageID 498. Perhaps most

strikingly, the unique staggered introduction of Facebook across domestic colleges allowed

researchers to analyze a vast amount of natural-experiment data relating to social-media use and

mental health: “the roll-out of the platform was associated with an increase in depression (9%

over baseline) and anxiety (12% over baseline) among college-aged youth (n = 359,827

observations).” Id., PageID 496.

This is not to say the record before us universally points to a causal relationship between

children’s using social media and then manifesting symptoms of poor mental health. As the SG

Advisory concedes, “[m]ost prior research to date has been correlational, focused on young

adults or adults, and generated a range of results.” Id., PageID 500. Another study proffered by

Yost paints a similar picture:

Yet there is still considerable uncertainty about how social media use relates to

well-being. Meta-analyses have identified small or negligible negative links

between social media use and well-being, while experimental evidence is mixed.

Longitudinal observational studies that have investigated the predictive

relationships between social media use and well-being have found that they are

either reciprocal, only present in a certain direction or sex or not present at all.

The lack of concrete evidence is an issue routinely highlighted by academics,

medical professionals, and policymakers.

R. 42-3, PageID 517. As this study goes on to posit, some of the muddied data could be the

result of differing susceptibilities of children based on age and sex. See id., PageID 518

(stratifying “life satisfaction ratings” based on hours of daily social-media use by age and sex).

This study, as well as the SG Advisory, also proposes that the data may be obscured by a

possible “Goldilocks” relationship, whereby limited, supervised social-media use may be more

beneficial to some older youth than would be none at all, but that usage beyond some threshold

then produces deleterious effects. See id., PageID 517–518; see also SG Advisory, R. 42-2,

No. 25-3371 NetChoice, LLC v. Yost Page 38

PageID 500 (noting a “potentially bidirectional” relationship between social-media use and

mental health in minors).

NetChoice challenges the weight of Yost’s evidence, arguing that “‘nearly all of the

research’ showing any harmful effects here ‘is based on correlation.’” Appellee NetChoice’s Br.

at 54 (quoting Brown v. Ent. Merchants Ass’n, 564 U.S. 786, 800 (2011)). The district court

agreed with that characterization of Yost’s record. Yost, 778 F. Supp. 3d at 955–56. Further,

NetChoice emphasizes that the SG Advisory itself concedes that “[s]ocial media can provide

benefits for some youth by providing positive community and connection with others who share

identities, abilities, and interests.” Appellee NetChoice’s Br. at 55 (emphasis omitted) (quoting

R.42-2, PageID 495).

But even accepting that this evidence of correlation does not amount to proof of

causation, two factual issues undermine NetChoice’s point. First, a major hurdle to studying the

relationship between social-media use and minors’ mental-health outcomes resides with the

social-media companies themselves: The SG Advisory maintains that “[t]here is broad concern

among the scientific community that a lack of access to data and lack of transparency from

technology companies have been barriers to understanding the full scope and scale of the impact

of social media on mental health and well-being.” R. 42-2, PageID 500. Second, one particular

adverse effect of minors’ use of social media—addiction—is an intentional element of some

social-media platforms’ designs. See Appellant Yost’s Br. at 5–6; see also Yost’s Mot. Summ.

J., R. 42, PageID 441–42. Yost points us to the Congressional testimony of a former executive

of one of NetChoice’s largest members: “[W]e sought to mine as much human attention as

possible and turn it into historically unprecedented profits. To do this, we didn’t simply create

something useful and fun. We took a page from Big Tobacco’s playbook, working to make our

offering addictive at the outset.” Id., PageID 441 (citation omitted). Yost points out that his

excessive-use-by-design inference is borne out by the financial incentives undergirding social-

media product design. See id., PageID 441 (“The obvious answer to this [continued-growth]

problem is that these companies must capture a larger share of their billions of users’ time and

attention. This incentivizes them, now more than ever, to make their services addictive. Their

continued growth depends on it. And it’s working.”). One study estimates that the annual

No. 25-3371 NetChoice, LLC v. Yost Page 39

advertising revenue in 2022 for Facebook, Instagram, Snapchat, TikTok, Twitter (now X), and

YouTube from children under 13 was over $2 billion. Raffoul Study, R. 42-1, PageID 484–485.

For minors under 18, that value is estimated at nearly $11 billion. Id. Notably, NetChoice does

not counter these allegations that social media is designed to be addictive to youth.

Yost contends that minors face other risks from social-media use, including unsupervised

online interactions leading to encounters with sex predators. Yost proffers an affidavit from an

investigator of online child-exploitation crimes who testified that social media’s prevalent

features (anonymity, easy ability to interact with other users, easy ability to review other users’

previous posts, end-to-end encrypted private messaging, lack of mandatory parental supervision)

make the platforms ideal vectors for grooming and exploiting minors. R. 42-4, PageID 528–30.

Yost also identifies many of social-media operators’ contractual terms of service as

harmful to minors, both as an independent harm and as an augmentation of other, previously

discussed harms. In particular, Yost alleges that these terms of service impose agreement-to-

liability, arbitration, choice-of-law, forum-selection, and intellectual-property provisions that

favor the social-media providers at the expense of minor users. See, e.g., Yost’s Mot. Summ. J.,

R. 42, PageID 450–53 (analyzing various platforms’ terms of service). According to Yost, these

terms hamper the minors’ privacy and intellectual-property interests and make it more difficult

for them to pursue relief related to other harms, such as adverse mental-health outcomes.

NetChoice does not refute the alleged harms other than to assert that Yost fails to

establish causation connecting minors’ social-media use and adverse health and behavioral

outcomes. NetChoice instead points us to the potential benefits of social-media use and existing

parental supervision tools. According to NetChoice, and as admitted by Yost’s proffered SG

Advisory, social media can provide minors with communities of like-minded and like-interested

users. Appellant NetChoice’s Br. at 55 (citation omitted). And parents can control which

electronic devices their children access, whether those devices are internet-enabled, and when

children may access them. NetChoice alleges that many devices, networks, and software

systems come with built-in parental-control options, allowing parents to limit apps, features,

content, and usage, and that many NetChoice members have developed their own suite of

protections and controls, including content moderation. Id. at 5–7.

No. 25-3371 NetChoice, LLC v. Yost Page 40

In sum, as the district court recognized, “good things [may] be said about social media

platforms,” but minors’ social-media use “come[s] with a cost” to minors and a multi-billion-

dollar boon to social-media operators. See Yost, 778 F. Supp. 3d at 932–33. Social-media

operators “do not appear to be incorporating user-agnostic judgments when promoting content”

to adults or minors. Id. at 933. Rather, “[s]ocial media platforms are highly incentivized to keep

youth online—children and adolescents’ online experiences are heavily monetized through

advertising revenue on platforms’ websites and mobile applications.” Raffoul Study, R. 42-1,

PageID 483. Platforms indisputably employ features and algorithms “that leverage user data to

serve content recommendations” and “maximize engagement.” SG Advisory, R. 42-2, PageID

498. And while Yost’s evidence of harm may be primarily “based on correlation,” see Yost, 778

F. Supp. 3d at 955, that correlation is significant enough to garner the attention of researchers,

the U.S. Surgeon General, and numerous state legislatures and governors, among others.

NetChoice does not refute this harm. Rather, NetChoice contends that the purported harm is

insufficient justification for The Act as a matter of constitutional scrutiny.

B. The Parental Notification by Social Media Operators Act

In response to this alleged harm, Ohio’s elected representatives passed and its Governor

signed The Act. The legislation applies to “operator[s] of an online website, service, or product

that targets children, or is reasonably anticipated to be accessed by children.” Ohio Rev. Code

§ 1349.09(B). An “operator” is defined as “any business, entity, or person that operates an

online web site, service, or product that has users in [Ohio] and that allows those users to . . .

(a) [i]nteract socially with other users within the confines of the online web site, service, or

product; (b) [c]onstruct a public or semipublic profile for the purpose of signing into and using

the online web site, service, or product; (c) [p]opulate 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; [and] (d) [c]reate 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.” Id. § 1349.09(A)(1).

Excluded from The Act’s coverage are websites, services, and products in which the

“predominant or exclusive function” is “cloud storage or cloud computing services,” “broadband

No. 25-3371 NetChoice, LLC v. Yost Page 41

internet access services,” or “search engine services,” except “with respect to content and

communications created or controlled by” the website’s, service’s, or product’s provider,

affiliate, or subsidiary. Id. § 1349.09(N). Also excluded are websites, services, or products

respecting which “interaction[s] between users” consist only of “[r]eviewing products offered for

sale by electronic commerce or commenting on reviews posted by other users” or “[c]omments

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

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

The Act provides a list of factors that “the attorney general or a court may consider”

when determining whether a website, service, or product targets, or is reasonably anticipated to

be accessed by, children: (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. Id. § 1349.09(C). Children are defined as

unemancipated minors under the age of 16. Id. § 1349.09(A)(2). The statute is silent on age

verification, but at oral argument on summary judgment, counsel for Yost took the position that

“[t]his is a self-reporting statute.” R. 63, PageID 1399 (“[I]f the child fibs and says that they’re

over the age of 16, the Act is not requiring these companies to go through and verify the age of

all of its users.”).

The Act imposes three requirements on covered operators. First, they must “[o]btain

verifiable consent for any contract made 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” one of five approved methods. Id.

§ 1349.09(B)(1). Second, they must “[p]resent 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.” Id.

§ 1349.09(B)(2). Third, they must “[p]rovide to the child’s parent or guardian a web site link at

which the parent or legal guardian may access and review [that] list of features.” Id.

§ 1349.09(B)(3). Parents must be permitted to withdraw consent. Id. § 1349.09(F). Any child

No. 25-3371 NetChoice, LLC v. Yost Page 42

lacking affirmative consent from his or her parent or legal guardian must be denied access to the

website, service, or product. Id. § 1349.09(E).

The Ohio Attorney General is charged with investigating violations and enforcing The

Act. Id. § 1349.09(G)–(H). A covered operator’s failure to comply can result in significant civil

monetary penalties and responsibility to pay the Attorney General’s investigating and litigating

costs. See id. § 1349.09(I)–(K).

C. NetChoice’s Challenge

NetChoice is a trade association of internet companies. Its members operate several

websites that NetChoice claims are covered by The Act: Google’s YouTube; Meta’s Facebook,

Instagram, and Threads; Pinterest; X; Nextdoor; and Dreamwidth. Its members also include

Snap, Inc. (operator of SnapChat). NetChoice represents that “some of [its] members own or

operate what are commonly referred to as ‘social media’ websites.” Aff. of NetChoice Vice

President and Gen. Couns. Carl Szabo, R. 2-1, PageID 64. According to NetChoice, “each

covered member’s website publishes, disseminates, creates, curates, and distributes protected

speech.” Id., PageID 65.

In 2024, NetChoice brought this suit to stop enforcement of The Act. Seeking

declaratory and injunctive relief under 28 U.S.C. § 2201 and 42 U.S.C. § 1983, NetChoice

argues that The Act abridges the freedom of speech enshrined in the First Amendment and

applied against the states by the Fourteenth Amendment to the United States Constitution. The

district court granted NetChoice’s motions for a temporary restraining order and preliminary

injunction. After considering the parties’ cross-motions for summary judgment, the district court

granted NetChoice’s motion, denied Yost’s motion, and enjoined all enforcement of The Act.

Yost, 778 F. Supp. 3d at 959. Yost appeals from that judgment, contending that (1) NetChoice

lacks standing to assert the rights of its members’ potential minor users, (2) NetChoice’s facial

First Amendment challenge fails under any level of constitutional scrutiny, (3) NetChoice’s

facial-vagueness challenge fails based on a plain reading of the text, and (4) the district court’s

relief was overly broad.

No. 25-3371 NetChoice, LLC v. Yost Page 43

II.

This court reviews de novo a grant of summary judgment, including for lack of standing.

Kareem v. Cuyahoga Cnty. Bd. of Elections, 95 F.4th 1019, 1021 (6th Cir. 2024) (citation

omitted). “Summary judgment is proper when the ‘movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.’” Id.

(citing Fed. R. Civ. P. 56(a)). When this court addresses cross-motions for summary judgment,

it evaluates each party’s motion on its own merits, drawing all reasonable inferences against the

party whose motion is under consideration. Lyngaas v. United Concordia Companies, Inc, 140

F.4th 749, 751 (6th Cir. 2025), reh’g denied sub nom. Brian J. Lyngaas, D.D.S., P.L.L.C. v.

United Concordia Companies, Inc., No. 24-1777, 2025 WL 2214203 (6th Cir. July 8, 2025).

A. NetChoice’s Standing

1. Associational Standing

It is axiomatic that NetChoice must have standing to bring its claims. Our “threshold

question” is whether NetChoice has “standing to sue under Article III of the Constitution.” See

Food & Drug Admin. v. All. for Hippocratic Med., 602 U.S. 367, 378 (2024). NetChoice asserts

“associational standing to raise its member websites’ rights” in satisfaction of our Article III

standing requirements. Appellee NetChoice’s Br. at 15. Our recent caselaw has questioned

whether associational standing remains congruent with the “irreducible constitutional minimum”

of Article III standing given its lack of historical pedigree and the Supreme Court’s recent

skepticism toward “prudential” standing doctrines intertwined with the associational standing

test. Ass’n of Am. Physicians & Surgeons v. U.S. Food & Drug Admin., 13 F.4th 531, 537–542

(6th Cir. 2021). But without clearer guidance from the Court, this panel is nonetheless bound to

follow “the current test for this type of proxy suit. An organization may sue on behalf of its

members if it shows that: (1) its ‘members would otherwise have standing to sue in their own

right’; (2) the ‘interests’ that the suit ‘seeks to protect are germane to the organization’s

purpose’; and (3) ‘neither the claim asserted nor the relief requested requires the participation of

individual members in the lawsuit.’” Id. at 537 (internal citation omitted) (quoting Hunt v.

Wash. State Apple Advert. Comm’n, 432 U.S. 333, 343 (1977)). Yost does not challenge

No. 25-3371 NetChoice, LLC v. Yost Page 44

NetChoice’s associational standing to raise its member’s rights, and nothing from the record

suggests NetChoice fails to satisfy the test articulated in Hunt with regard to these two facial

challenges on behalf of its members.

2. Third-Party Standing

NetChoice also asserts “prudential standing to raise the interests of members’ users.”

Appellee NetChoice’s Br. at 15. In doing so, NetChoice essentially asks to “‘borrow’ its . . .

members’ third-party standing to assert the separate rights of” its members’ users—or, more

accurately, its potential minor users who stand to have their access to social media hampered by

The Act. See Ass’n of Am. Physicians & Surgeons, 13 F.4th at 547. This raises two questions:

Can NetChoice’s members assert third-party standing on behalf of their potential minor users?

And can NetChoice then “stack” its members’ third-party standing upon its associational

standing (a practice which one of our sister circuits labels “derivative standing,” see

Pennsylvania Psychiatric Soc. v. Green Spring Health Servs., Inc., 280 F.3d 278, 291 (3d Cir.

2002))? Regarding the second question, at least one Supreme Court decision seems to

countenance derivative standing. See New York State Club Ass’n, Inc. v. City of New York, 487

U.S. 1, 9 (1988) (permitting a “consortium of . . . private clubs and associations” to sue on behalf

of its members based on those members’ “standing to bring this same suit on behalf of their own

individual [private club] members”). But the answer to the first question obviates the need to

definitively answer the second: NetChoice’s members cannot bring this lawsuit to vindicate the

free-speech rights of minors. Minors would have to bring their own case should they seek to

vindicate their rights.

To be sure, the framework of our third-party standing doctrine is hardly a model of

clarity. The Supreme Court has alternatively articulated the doctrine as being “closely related to

the question whether a person in the litigant’s position will have a right of action on the claim,”

Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 127 n.3 (2014) (quoting

U.S. Dep’t of Lab. v. Triplett, 494 U.S. 715, 721, n. ** (1990)), suggesting an Article III link, or

as being “an element of ‘prudential standing,’” id. (quoting Kowalski v. Tesmer, 543 U.S. 125,

128–129 (2004)). And at least one Justice has questioned third-party standing altogether. All.

for Hippocratic Med., 602 U.S. at 397 (Thomas, J., concurring).

No. 25-3371 NetChoice, LLC v. Yost Page 45

Regardless of the “doctrine’s proper place in the standing firmament,” Lexmark, 572 U.S.

at 127 n.3., NetChoice’s gambit to assert minors’ rights falls short of our current third-party

standing test: “To establish such third-party standing absent statutory authorization, plaintiffs

must show both that they have a ‘“close” relationship’ with the person that possesses the right

and that some ‘hindrance’ limits that person’s ability to assert it.” Digital Media Sols., LLC v. S.

Univ. of Ohio, LLC, 59 F.4th 772, 782 (6th Cir. 2023) (quoting Kowalski, 543 U.S. at 130).

NetChoice lacks a sufficiently close relationship with its potential minor members. In fact,

NetChoice’s interests are often opposed to the interests of those it seeks to represent.

One of the primary harms alleged by Yost arises from the allegedly onerous terms of

service imposed on minor users by social-media operators, including NetChoice’s members.

Yost provides examples: Facebook (a platform operated by NetChoice member Meta) requires

each of its users to allow Facebook to “transfer, store and distribute content and data to [its] data

centers, partners, service providers, vendors and systems around the world, including outside [the

user’s] country of residence.” Yost’s Mot. Summ. J., R. 42, PageID 450 (first alteration added)

(citation omitted). Facebook’s users must also grant it a “non-exclusive, transferable, sub-

licensable, royalty-free, and worldwide license to host, use, distribute, modify, run, copy,

publicly perform or display, translate, and create derivative works of [the user]’s content.” Id.

(alteration in original) (citation omitted). NetChoice member Dreamwidth’s terms allegedly

contain an “indemnity/hold-harmless provision, liability limitations, warranty disclaimers, [a]

choice-of-law/forum-selection provision, [and a] license to user-submitted content.” Id., PageID

452.

According to Yost, these terms of service directly benefit operators to the detriment of

their minor users. In fact, The Act seeks to mitigate that harm through mandatory parental

consent to those terms and, by extension, those parents’ now-informed supervision of their

children’s social-media activities. Further, The Act seeks to protect those minor users from the

potential adverse effects of social-media use. In sum, this is a consumer-protection law, and a

consumer’s interests vis-à-vis such legislation are not the same as—and are often diametrically

opposed to—a seller’s interests. That is the case here, and “[a] failure to satisfy [Kowalski’s]

No. 25-3371 NetChoice, LLC v. Yost Page 46

prudential rule . . . dooms a plaintiff’s claims.” Henry v. Blank, 167 F.4th 375, 381 (6th Cir.

2026) (citing Kowalski, 543 U.S. at 134).

The reasoning undergirding Kowalski’s test supports this result. The general rule that a

party “cannot rest his claim to relief on the legal rights or interests of third parties,” Kowalski,

543 U.S. at 129 (citation omitted), “‘frees the [c]ourt[s] not only from unnecessary

pronouncement on constitutional issues, but also from premature interpretations of statutes in

areas where their constitutional application might be cloudy,’ and it assures the court that the

issues before it will be concrete and sharply presented,” Sec’y of State of Md. v. Joseph H.

Munson Co., 467 U.S. 947, 955 (1984) (citations omitted). “Generally, the third party will be the

best advocate of its own position, and the plaintiff [seeking standing under the third party’s

rights] may place a slightly different, self-interested ‘spin’ on its presentation.” Amato v.

Wilentz, 952 F.2d 742, 748 (3d Cir. 1991) (citing Munson, 467 U.S. at 955). These concerns are

particularly pointed where, as here, the right-holding third parties are ostensibly benefited by the

challenged statute. At the very least, large social-media operators and children cannot and do not

share a “close relationship” with regard to a statute targeting (among other things) the operators’

terms of service.

NetChoice retorts that the Supreme Court has been more “forgiving” in certain

circumstances: “‘Within the context of the First Amendment,’ for example, ‘the Court has

enunciated other concerns that justify a lessening of prudential limitations on standing.’”

Kowalski, 543 U.S. at 130 (quoting Munson, 467 U.S. at 956). Just so. But lessening does not

mean universal elimination. And whereas similar or even dissimilar interests may clear a

lessened close-relationship hurdle, the opposing interests at play here will not. To that point, the

Supreme Court in Munson applied the two “prudential” prongs of the third-party-standing test

with marked dissimilarity. See Munson, 467 U.S. at 956–60. In considering the Munson

defendant’s lack-of-hindrance argument against third-party standing, the Court held that, in the

context of an overbreadth challenge under the First Amendment, this failure was of no

consequence. Id. at 957–58. “[W]here the claim is that a statute is overly broad in violation of

the First Amendment, the Court has allowed a party to assert the rights of another without regard

to the ability of the other to assert his own claims.” Id. at 957. But the Court considered the

No. 25-3371 NetChoice, LLC v. Yost Page 47

merits of the close-relationship prong, finding that the defendant had “come forward with no

reason why [the plaintiff] is an inadequate advocate to assert the [third parties’] rights. The

activity sought to be protected [wa]s at the heart of the business relationship between [the

plaintiff] and [its third-party clients], and [the plaintiff’s] interests in challenging the statute

we[re] completely consistent with the First Amendment interests of the [third parties] it

represents.” Id. at 958 (emphasis added). Having been satisfied that no close-relationship

barrier existed, the Court “s[aw] no prudential reason not to allow [the plaintiff] to challenge the

statute” based on third-party standing.” Id.

Even under the reduced burden applicable to overbreadth challenges, NetChoice’s

interests vis-à-vis those of minors are not “completely consistent,” “closely aligned,” or even

neutral. They are opposed to one another. Nor am I concerned that “there is a possibility that,

rather than risk punishment for [their] conduct in challenging the statute, [third parties] will

refrain from engaging further in the protected activity.” Munson, 467 U.S. at 956. This

concern—the “danger of chilling free speech”—undergirding Munson’s and Virginia v.

American Booksellers Association, Inc.’s relaxed third-party-standing standard is absent where,

as here, the third parties do not “risk punishment” or some other harm for speaking freely. See

id.; see also Am. Booksellers, 484 U.S. 383, 389, 392–93 (1988), certified question answered sub

nom. Commonwealth v. Am. Booksellers Ass’n, Inc., 236 Va. 168 (1988) (permitting booksellers

to assert the rights of book-buying adults reluctant to enter an adults-only store or section of a

store “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”

(quoting Munson, 467 U.S. at 956–57)). Perhaps some minor users face limited access to social-

media platforms under The Act, but there is no risk that the state will punish them for their

speech or that they will otherwise be “chilled” and “refrain from constitutionally protected

speech.” The Act creates no cause of action against minors. And NetChoice does not contend

that minors cannot bring their own challenges to The Act.

NetChoice’s counterarguments are unavailing. First, NetChoice contends this is an

improper “inject[ion of] merits issues into the standing analysis.” Appellee NetChoice’s Br. at

27. But NetChoice does not explain how a court can consider NetChoice’s ability to “frame the

No. 25-3371 NetChoice, LLC v. Yost Page 48

issues and present them with necessary adversarial zeal,” see Munson, 467 U.S. at 956, without

acknowledging the adversarial issues. To that point, NetChoice itself engages the merits in its

effort to prove its alignment with children’s interests. Appellee NetChoice’s Br. at 26–27. At

any rate, a court may readily recognize a conflict of interests over a particular claim without

prejudging the merits of the claim.

Second, NetChoice contends that Elk Grove Unified School District v. Newdow, 542 U.S.

1 (2004), which Yost cites in support of his argument that conflicts of interest defeat third-party

standing, is inapposite. Appellee NetChoice’s Br. at 27. But Yost does not need Newdow to

show that conflicting interests are likely fatal (and are certainly fatal in this case) to a finding of a

close relationship. Munson, Kowalski, and the logic of adversarial proceedings make this self-

evident point.

Third, NetChoice cannot rely on American Booksellers, 484 U.S. at 392–93. While

American Booksellers affirmed Munson’s holding lowering the third-party-standing standard in

overbreadth cases, the American Booksellers Court did not consider third-party-standing

conflicts of interest. See id. Nor are any such issues present in that case. The plaintiffs

(booksellers and booksellers’ associations) sought to enjoin enforcement of a statute restricting

the open display of sexual content in bookstores, but the plaintiffs were suing on behalf of adult

purchasers of such material. See id. at 386, 388 n.3, 389, 393. The booksellers did not—as

would be analogous to NetChoice’s standing argument—assert minors’ rights to view the sexual

material unhindered.

Fourth, NetChoice argues that third-party standing requires only an alignment of interests

“insofar as it is linked to the right asserted.” Appellee NetChoice’s Br. at 27 (quoting Yost, 778

F. Supp. 3d at 944). But NetChoice identifies no controlling caselaw in support of this principle.

Instead, NetChoice and the district court rely on a Third Circuit case: Amato, 952 F.2d at 752.

Amato is not binding on this panel; nor does Amato help NetChoice’s case. While the Third

Circuit did hold that “the relationship between the third party and the plaintiff only counts

insofar as it is linked to the right asserted,” context reveals that this requirement was meant to

protect the third party’s interests by limiting the kinds of close relationships the plaintiff may

assert:

No. 25-3371 NetChoice, LLC v. Yost Page 49

But a close personal relationship is neither necessary nor sufficient for third party

standing. Even a close relative will not be heard to raise positions contrary to the

interests of the third party whose rights he or she claims to represent: the litigant

would then hardly be a vigorous advocate of the third party’s position.

Moreover, the relationship between the third party and the plaintiff only counts

insofar as it is linked to the right asserted, for it is when “the enjoyment of the

right is inextricably bound up with the activity the litigant wishes to pursue [that]

the court can at least be sure that its construction of the right is not unnecessary

. . . .”

Id. at 751–52 (citations omitted) (emphasis added). The focus on the “right asserted” is a

limitation on the litigant, not a permission slip to cherry-pick certain rights and render them

devoid of all context in an effort to ignore relevant conflicting interests.

Finally, NetChoice relies on other courts’ treatment (explicit or tacit) of NetChoice’s

third-party standing in related litigation. See Appellee NetChoice’s Br. at 25. These decisions

are not binding on this panel. Nor are they convincing. Of the decisions that remain good law,

they either do not address third-party standing, do not address conflicts of interests in the context

of third-party standing, or overextend American Booksellers and related cases to dismiss such

conflicts as irrelevant in overbreadth challenges—a position not supported by American

Booksellers and contrary to the Supreme Court’s on-point treatment in Munson.

As I understand it, Judge Ritz would permit NetChoice’s reliance on minors’ standing,

reasoning that “the question is not whether the interests of NetChoice’s members are aligned

with all of their minor users’ interests, but whether NetChoice’s members are ‘fully, or very

nearly, as effective a proponent of the right’ at issue as the minor users.” See post, Op. of J. Ritz,

at 2 (emphasis in original) (quoting Singleton v. Wulff, 428 U.S. 106, 115 (1976) (plurality

opinion)). Judge Ritz would hold that “the activity [NetChoice’s members] wish[] to pursue” is

“inextricably bound up” with their potential minor users’ rights. Id. (quoting Singleton, 428 U.S.

at 114 (plurality opinion)) (alterations added).

But I read Singleton differently. Justice Blackmun’s opinion acknowledges that where a

nonparty’s “enjoyment of [a] right is inextricably bound up with the activity the litigant wishes

to pursue, the court at least can be sure that its construction of the right is not unnecessary in the

sense that the right’s enjoyment will be unaffected by the outcome of the suit.” 428 U.S. at 114–

No. 25-3371 NetChoice, LLC v. Yost Page 50

15 (plurality opinion) (emphasis added). Justice Blackmun further observed that, in such cases,

“the relationship between the litigant and the third party may be such that the former is fully, or

very nearly, as effective a proponent of the right as the latter.” Id. at 115 (emphasis added)

(plurality opinion). So, an “inextricably bound up” nonparty-right-to-litigant-activity

relationship merely guarantees that the right will not be completely “unaffected” by the

litigation, and such a relationship may secure effective third-party representation. In other

words, even if NetChoice’s members’ desired activities were “inextricably bound up” with

minors’ rights, that would be a necessary, but not necessarily sufficient, prerequisite to

NetChoice’s asserting those rights.

To that point, Singleton’s third-party-standing analysis does not at all address situations

where, as here, litigants and nonparties diverge in their relevant interests. And even if, in order

to assert third-party standing, a litigant must be an effective proponent of only the particular

rights “at issue,” see post, Op. of J. Ritz, at 2 (emphasis removed), that would not permit

NetChoice to frame the at-issue rights so narrowly as to ignore obviously different interests of

minors in how those rights are protected. Nor do I agree that NetChoice can brush aside these

conflicts merely because its members’ relationships with minor users would be ongoing, and I

am not convinced that we should read into Craig v. Boren, 429 U.S. 190 (1976), a consideration

of conflicting interests that is absent from that opinion’s text. Contra post, Op. of J. Ritz, at 3.

Finally, Judge Ritz would permit NetChoice’s third-party standing because minors are

hindered in asserting their own rights. See post, Op. of J. Ritz, at 4. I am not convinced that this

is the case. For one, minors in Texas have already brought their own challenge (parallel to a

challenge by a NetChoice-esque technology industry association) to a Texas statute similar to

The Act. See Students Engaged in Advancing Tex. v. Paxton, 765 F. Supp. 3d 575, 582 (W.D.

Tex. 2025). And I fail to see how minors’ purported right to speak anonymously on social

media—a right which NetChoice does not discuss on appeal—is destroyed by minors vindicating

their own purported rights to join social media platforms. Contra post, Op. of J. Ritz, at 4. In

that vein, “swingers” interests in anonymously vindicating their purported right to advertise in a

sexual magazine do not map onto the interests at issue here. Contra id. (discussing Connection

Distrib. Co. v. Reno, 154 F.3d 281, 295 (6th Cir. 1998)). There is no evidence that any minor has

No. 25-3371 NetChoice, LLC v. Yost Page 51

refrained from suing Yost for fear of revealing that he or she is a minor planning on generally

speaking on a social media platform.

Judge Clay takes a slightly different approach to the third-party standing analysis,

adopting the Third Circuit’s framing of the issue as a “balance of factors.” See Amato, 952 F.2d

at 750. But the Third Circuit derives this balancing of factors from the Supreme Court’s third-

party-standing analysis in Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 623 n.3

(1989). See Amato, 952 F.2d at 749. Caplin & Drysdale is a Sixth Amendment case, from

which, as Amato acknowledges, the Supreme Court’s third-party-standing analysis in First

Amendment cases differs dramatically. See id. (observing that Munson and American

Booksellers discount Caplin & Drysdale’s obstacle factor entirely). In fact, the Supreme Court

would go on to explicitly distinguish its First Amendment treatment of third-party standing from

its analysis in Caplin & Drysdale. See Kowalski, 543 U.S. at 130–31. Admittedly, “[t]he

limitations on third-party standing are hard[] to classify,” Lexmark, 572 U.S. at 127 n.3, and the

test of those limitations lacks precise definition. But, in light of Kowalski, I would not employ

Amato’s balancing approach in a First Amendment case like this one. Instead, I make only the

narrow observation that third-party standing is almost certainly impermissible in any case where

the plaintiff’s and the third parties’ interests are at odds. And it is certainly impermissible on the

facts before us here. NetChoice may bring this lawsuit on behalf of its members, raising any

free-speech rights those members possess in relation to The Act. But NetChoice may not raise

the rights of minors.

B. NetChoice’s First Amendment Challenge

NetChoice first challenges The Act under the First Amendment. Courts have taken

diverse approaches to NetChoice’s First Amendment challenges to similar legislation. Some

have applied strict scrutiny, see, e.g., Jones, 2026 WL 561099 at *10; others have applied

intermediate scrutiny, see, e.g., Uthmeier, 2025 WL 3458571 at *3. The district court below

held that Ohio’s Act implicates First Amendment review, warrants strict scrutiny, and fails under

that test. Yost, 778 F. Supp. 3d at 947–57. Judges Clay and Ritz both hold that The Act

regulates speech on the basis of content, so strict scrutiny applies. But whereas Judge Clay holds

that The Act survives strict scrutiny, Judge Ritz disagrees. I am skeptical that The Act is a

No. 25-3371 NetChoice, LLC v. Yost Page 52

content-based regulation in the way Judges Clay and Ritz say it is, so I question whether strict

scrutiny (as opposed to intermediate scrutiny) bears on to those applications of The Act

considered by my colleagues.

But a step remains before we analyze whether The Act regulates speech and what level of

scrutiny applies to that regulation. NetChoice does not challenge The Act as applied to its

members. Rather, it asserts only that the statute is facially invalid. “A facial challenge to a

legislative Act is, of course, the most difficult challenge to mount successfully, since the

challenger must establish that no set of circumstances exists under which the Act would be

valid.” United States v. Salerno, 481 U.S. 739, 745 (1987). This exacting standard is lowered in

First Amendment cases: “The question is whether ‘a substantial number of [the law’s]

applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.’”

Moody, 603 U.S. at 723 (2024) (quoting Americans for Prosperity Found. v. Bonta, 594 U.S.

595, 615 (2021)). In other words, The Act’s “plainly legitimate sweep” may be struck down, but

only if its “unconstitutional applications substantially outweigh its constitutional ones.” Id. at

723–24. “Even in free-speech cases, . . . facial invalidation of a statute remains ‘strong medicine

that is not to be casually employed.’” Connection Distrib. Co. v. Holder, 557 F.3d 321, 336 (6th

Cir. 2009) (quoting United States v. Williams, 553 U.S. 285, 293 (2008)).

In short, “NetChoice chose to litigate th[is] case[] as [a] facial challenge[], and that

decision comes at a cost.” See Moody, 603 U.S. at 723. And just as happened in Moody,

NetChoice failed to meet its burden here. The timeline of the proceedings below demonstrates

this failure. “One week after the parties’ summary judgment briefing concluded, the Supreme

Court decided Moody v. NetChoice, LLC,” in which the Supreme Court explained that “[a]

proper First Amendment facial challenge . . . proceeds in two steps.” Yost, 778 F. Supp. 3d at

936. “The first step in the proper facial analysis is to assess the state law[’s] scope.” Moody,

603 U.S. at 724. “The next order of business is to decide which of the laws’ applications violate

the First Amendment, and to measure them against the rest.” Id. at 725. After the Supreme

Court’s decision in Moody, the circuit courts from which the cases in that consolidated appeal

originated remanded their respective cases to the respective district courts; one explicitly noted

that Moody raises “fact-intensive questions that must be answered by the district court in the first

No. 25-3371 NetChoice, LLC v. Yost Page 53

instance after thorough discovery.” See Yost, 778 F. Supp. 3d at 936–37 (quoting NetChoice,

L.L.C. v. Paxton, 121 F.4th 494, 499 (5th Cir. 2024)). In light of this, the district court in this

case “asked the parties . . . whether discovery should be re-opened or summary judgment

briefing should be supplemented.” Id. at 937. NetChoice, which is the party that bears the

burden under Moody’s framework, Moody, 603 U.S. at 744, “maintained that the record is

sufficient under Moody,” Yost, 778 F. Supp. 3d at 937. Yost “opined that the record is

insufficient but that the burden of proof rests with NetChoice.” Id.

Unsurprisingly, NetChoice failed to satisfy its facial challenge burden in clairvoyant

anticipation of Moody’s holding. NetChoice did not thoroughly “assess [The Act’s] scope” or

provide an adequate record “to decide which of [The Act’s] applications violate the First

Amendment, and to measure them against the rest.” See Moody, 603 U.S. at 724–25. The

district court likewise did not attempt this inquiry, concluding that “unlike the provisions at issue

in Moody, the regulation here ‘raises the same First Amendment issues’ ‘in every application to a

covered business.’” Yost, 778 F. Supp. 3d at 947 (quoting NetChoice, LLC v. Bonta (Bonta I),

113 F.4th 1101, 1116 (9th Cir. 2024)).

Presumably, the district court made this assumption because it permitted NetChoice to

assert the rights of its members’ potential minor users. Id. at 946. Minors’ rights to access social

media platforms and receive and publish speech might present a more unitary First Amendment

analysis. But I decline to decide here whether, relying on such third-party standing, NetChoice

can demonstrate that The Act raises the same constitutional issues in every application. As

addressed above, the district court’s third-party standing conclusion was in error, and NetChoice

may assert only its members’ rights. And that posture does not permit NetChoice to shirk its

burden under Moody. In fact, one need look no further than the Supreme Court’s analysis in that

case to identify the problems with that shortcut. From the record below, I cannot assess the full

scope of NetChoice’s members’ services covered by The Act, much less the scope of services

offered by nonparties. Some of those services, such as “direct messaging service[s]” may not

warrant the same kind of constitutional protection (at least with regard to the service provider’s

right to speak freely) as other services, such as “[c]urating a [social-media] feed.” Moody, 603

U.S. at 725–26. In other words, “regulation of those diverse activities could well fall on different

No. 25-3371 NetChoice, LLC v. Yost Page 54

sides of the constitutional line.” Id. at 726. “[C]onstitutional ‘answers might differ’ depending

on the speaker at issue,” “the platforms at issue,” and “the speech at issue.” Doe v. Burlew, 165

F.4th 525, 534–35 (6th Cir. 2026) (quoting Moody, 603 U.S. at 725.)

In sum, this court cannot “explore the [Act’s] full range of applications—the

constitutionally impermissible and permissible both—and compare the two sets.” See Moody,

603 U.S. at 726. Rather, it is left in the same conundrum as in Moody: “[W]e are a court of

review, not of first view.” Id. (citation omitted). But unlike the procedural situation in Moody

and Doe, NetChoice was fully aware of its burden: the Supreme Court’s decision in Moody was

released prior to the summary-judgment hearing in this case, and the district court appropriately

questioned NetChoice whether the record was complete in light of the decision. NetChoice—the

same party that litigated the Moody case—answered in the affirmative. Having declined the

opportunity to seek leave to file additional summary-judgment briefing in light of Moody or

request a reopening of discovery, NetChoice must pay the “cost” of its decision to bring a facial

challenge without a sufficiently developed record. See Moody, 603 U.S. at 723.

Judge Clay reaches the merits of NetChoice’s First Amendment challenge because he

holds that The Act “burdens at least some protected speech.” I do not disagree that The Act

almost certainly burdens some speech, and some of that speech may very well be protected by

the First Amendment. But I read Moody as requiring a plaintiff bringing a facial First

Amendment challenge to identify the full scope of that speech and then assess how much of that

burden is unjustified in light of the First Amendment. To engage in the merits of NetChoice’s

challenge without its having met this facial burden would likely involve our analyzing only the

“heartland applications” of The Act and attempting to extrapolate the constitutionality of those

applications to The Act’s entire scope—an approach forbidden by Moody, 603 U.S. at 724. So

while some—perhaps even most—of The Act’s applications warrant constitutional review, I

refrain from doing so on a facial challenge without a developed record.

Judge Ritz also says that we may reach the merits of NetChoice’s challenge; he adopts

the district court’s reasoning that because NetChoice’s members and other covered operators are

“under the same statutory obligation to block access to unemancipated Ohio minors absent

parental consent,” The Act “raises the same First Amendment issues in every application to a

No. 25-3371 NetChoice, LLC v. Yost Page 55

covered business.” Yost, 778 F. Supp. 3d at 947 (citation modified). As discussed above, this

logic relies on NetChoice’s assertion of minors’ rights. Because I, along with Judge Clay, do not

think that third-party standing is proper, I would analyze NetChoice’s facial challenge burden in

light of its members’ First Amendment rights alone. And doing so does not turn NetChoice’s

facial claim into an as-applied challenge. See contra post, Op. of J. Ritz, at 6. NetChoice’s

members may challenge The Act as unconstitutionally enforced against them “in any

circumstance,” as opposed to unconstitutional as applied to those members’ “specific conduct.”

See Doe, 165 F.4th at 530 (emphasis removed). Nor does denial of third-party standing as to

minors necessarily prevent NetChoice from asserting a facial challenge with regard to other

operators, though NetChoice does not appear to raise that argument on appeal. At any rate,

NetChoice’s decision to bring a facial challenge based on third-party interests that it may not

assert does not require us to disregard our third-party-standing doctrines in order to save that

facial challenge. And because The Act contemplates applications with potentially disparate First

Amendment implications (i.e., hosting curated social-media feeds versus facilitating peer-to-peer

messaging, see Ohio Rev. Code § 1349.09(A)(1)(d)), NetChoice may not assert its own rights in

a one-size-fits-all facial challenge.

C. NetChoice’s Vaguness Challenge

NetChoice also contends that The Act is unconstitutionally vague on its face based on

two provisions in particular: (1) a coverage provision limiting The Act’s application to operators

of “online web site[s], service[s], or product[s] that target[] children, or is reasonably anticipated

to be accessed by children,” Ohio Rev. Code § 1349.09(B), and (2) an exclusion from coverage

of “online web site[s], service[s], or product[s] respecting which interaction between users is

limited to . . . [c]omments incidental to content posted by an established and widely recognized

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

§ 1349.09(O)(2).

Under the Supreme Court’s test for vagueness, NetChoice “must show either that the

[Act’s] provisions (1) ‘fail to provide people of ordinary intelligence a reasonable opportunity to

understand what conduct it prohibits’ or (2) ‘authorize or even encourage arbitrary and

discriminatory enforcement.’” Platt v. Bd. of Comm’rs on Grievances & Discipline of Ohio Sup.

No. 25-3371 NetChoice, LLC v. Yost Page 56

Ct., 894 F.3d 235, 246 (6th Cir. 2018) (citation modified) (quoting Hill v. Colorado, 530 U.S.

703, 732 (2000)). “While ‘a more stringent vagueness test should apply’ to laws abridging the

freedom of speech, that standard is relaxed somewhat when the [statute] imposes civil rather than

criminal penalties and includes an implicit scienter requirement.” Id. (quoting Vill. of Hoffman

Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499 (1982)). “An enactment imposing

criminal sanctions or reaching a substantial amount of constitutionally protected conduct may

withstand facial constitutional scrutiny only if it incorporates a high level of definiteness.” Belle

Maer Harbor v. Charter Twp. of Harrison, 170 F.3d 553, 557 (6th Cir. 1999) (citing Hoffman

Estates, 455 U.S. at 494). “But perfect clarity and precise guidance have never been required

even of regulations that restrict expressive activity.” United States v. Williams, 553 U.S. 285,

304 (2008) (quoting Ward v. Rock Against Racism, 491 U.S. 781, 794 (1989)).

NetChoice’s failure to present the full scope of The Act and analyze the constitutional

implications for every application rears its head in the facial-vagueness analysis as well.

Without a more developed record, we are left to guess whether The Act truly covers significant

amounts of protected speech. Arguably, Moody would also counsel us to reverse on NetChoice’s

vagueness claim for failure to develop the factual record, similarly to Moody’s instruction with

regard to First Amendment overbreadth claims. But Moody’s relationship with the void-for-

vagueness doctrine is unclear. At any rate, because NetChoice’s vagueness claim fails even if

The Act covers a significant amount of protected speech, I presume as much without deciding.

So, mindful that The Act presumably covers significant amounts of protected speech and

contains no scienter requirement but does not impose criminal punishment, I turn to the two

purportedly vague provisions.

1. The Coverage Provision

First, NetChoice asserts that the coverage provision is vague, focusing primarily on The

Act’s list of discretionary factors that the Ohio attorney general or a court “may consider” when

“determining whether an operator’s online web site, service, or product targets children, or is

reasonably anticipated to be accessed by children.” Ohio Rev. Code § 1349.09(C). According to

NetChoice, “[a]lmost all these factors are vague, subjective, or so broad as to be meaningless,”

and covered websites are at a loss as to “how [they] are supposed to weigh the ‘eleven

No. 25-3371 NetChoice, LLC v. Yost Page 57

discretionary factors.’” Appellee NetChoice’s Br. at 72. But this misses the point. Even taking

NetChoice’s characterization as true, these non-exhaustive factors are only in service of a clearly

articulated standard: whether a website “targets children” or “is reasonably anticipated to be

accessed by children.” Whether the list itself is vague or unbounded is irrelevant if the provision

it seeks to exemplify is sufficiently clear. See Platt, 894 F.3d at 247 (holding that “[w]hen the

common meaning of a word provides adequate notice of the prohibited conduct, the statute’s

failure to define the term will not render the statute void for vagueness” (citation omitted)).

And while the district court admonished—without analysis and citing to no authority—

that the statute’s focus on websites targeting or likely accessed by children amounts to facially

“expansive language” that left the court befuddled and “would leave many operators unsure as to

whether [The Act] applies to their website,” Yost, 778 F. Supp. 3d at 957, I cannot agree.

Whether a website targets or is reasonably anticipated to be accessed by children does not “fail to

provide people of ordinary intelligence a reasonable opportunity to understand” the statute’s

scope. See Platt, 894 F.3d at 246 (citation modified). “The fact that a law is ‘marked by

“flexibility and reasonable breadth, rather than meticulous specificity”’ does not render it unduly

vague.” Id. at 246–47 (quoting Grayned v. City of Rockford, 408 U.S. 104, 110 (1972)). “Said

another way, where the challenged language ‘is commonly used in both legal and common

parlance,’ it often will be ‘sufficiently clear so that a reasonable person can understand its

meaning.’” Id. at 247 (citation omitted). The Act’s coverage provision employs the kind of

language used in legal and common parlance to articulate a comprehensible point: The Act is

aimed at the social-media activities of children, not adults.

Relatedly, this court has rejected similar vagueness challenges to language defining the

scope of a prohibition with regard to children. In United States v. Arnold, we held, albeit under a

plain error standard, that a sex offender’s condition of release barring him from “association with

children younger than 18 years of age” was not unconstitutionally vague. 549 F. App’x 491,

497–98 (6th Cir. 2013); see also United States v. Zobel, 696 F.3d 558, 575 (6th Cir. 2012)

(similar). Our sister circuits have held that similar language is not vague in this context. See,

e.g., United States v. Paul, 274 F.3d 155, 165–67 (5th Cir. 2001) (rejecting vagueness challenge

to a condition of release instructing the releasee “to ‘avoid places, establishments, and areas

No. 25-3371 NetChoice, LLC v. Yost Page 58

frequented by minors’”); United States v. MacMillen, 544 F.3d 71, 76 (2d Cir. 2008) (similar);

United States v. Loy, 237 F.3d 251, 268–69 (3d Cir. 2001) (similar); United States v. Ristine, 335

F.3d 692, 696–97 (8th Cir. 2003) (similar); United States v. Mike, 632 F.3d 686, 697 (10th Cir.

2011) (similar); United States v. Gibson, 998 F.3d 415, 419 (9th Cir. 2021) (rejecting similar

vagueness challenge to a condition including the phrase, “primarily used by children”). While

these cases do not present an exact comparison, I see no reason why a statute defining its scope

with regard to how a product “targets children” or “is reasonably anticipated to be accessed by

children” is insufficiently articulate.

NetChoice offers little by way of rebuttal, and its argument is notably sparse on

supporting authority. As mentioned above, its contention that the coverage provision fails for

vagueness rests almost entirely on the purported vagueness of “eleven discretionary factors”

supporting that provision. The only attack lobbed at the coverage provision itself is NetChoice’s

concern that it fails “to distinguish among websites that target or can reasonably anticipate being

accessed by 15-year-olds versus 16-year-olds.” Appellee NetChoice’s Br. at 73; see also

NetChoice’s Mot. Summ. J., R. 43, PageID 661. But The Act does not require such hair

splitting. Rather, The Act only requires covered operators to determine whether their websites

target or can reasonably anticipate being accessed by minors under the age of sixteen, regardless

of whether the same could be said about minors aged sixteen-years-and-one-day or older. And

NetChoice’s remaining argument—its assertion that the coverage provision lends itself to

arbitrary enforcement—is just conclusory. Again, whether the purportedly vague nature of the

“eleven discretionary factors” risks arbitrary enforcement does not mean that the coverage

provision itself bears such risk. And without its attacks on the list of factors, NetChoice asserts

only that the coverage provision “grants [Yost] far too much discretion.” This will not do.

Meriwether v. Hartop, 992 F.3d 492, 518 (6th Cir. 2021) (rejecting a similar “conclusory

assertion” that an allegedly vague policy “g[ave] officials ‘unbridled discretion’ in

enforcement”).

Finally, NetChoice contends that “[a] law that implicates First Amendment freedoms is

unconstitutionally vague if it ‘reaches a substantial amount of constitutionally protected

conduct.’” Appellee NetChoice’s Br. at 71 (quoting Belle Maer Harbor, 170 F.3d at 557). This

No. 25-3371 NetChoice, LLC v. Yost Page 59

is dead wrong. In Belle Maer Harbor, we held that, “[i]n examining a facial challenge, this court

must first ‘determine whether the enactment reaches a substantial amount of constitutionally

protected conduct.’” Id., 170 F.3d at 557 (emphasis added) (quoting Hoffman Estates, 455 U.S.

at 494). If it does, we do not automatically deem it unconstitutionally vague but inquire whether

it “incorporates a high level of definiteness.” Id. (citing Hoffman Estates, 455 U.S. at 494). And

while the Supreme Court has “permit[ed] plaintiffs to argue that a statute is overbroad because it

is unclear whether it regulates a substantial amount of protected speech,” Williams, 553 U.S. at

304 (citation omitted) (emphasis added), it does not empower NetChoice to shoehorn a First

Amendment overbreadth claim into a Fourteenth Amendment vagueness challenge when

NetChoice has manifestly failed to meet its overbreadth burden under Moody. See supra, II.B;

see also Holder v. Humanitarian L. Project, 561 U.S. 1, 20 (2010). Plaintiffs often bring First

Amendment overbreadth and Fifth Amendment vagueness challenges together, but these

doctrines attack a purportedly unconstitutional statute on different grounds; substituting the

analysis for one challenge for the test for the other would render both “substantially redundant.”

See Humanitarian L. Project, 561 U.S. at 20. I acknowledge that the coverage provision likely

covers a substantial number of website operators, and this appears to be NetChoice’s chief

complaint—even in its void-for-vagueness arguments. But a statute is not vague just because it

has a wide berth. See id. (stating that Supreme Court “precedents make clear that a Fifth

Amendment vagueness challenge does not turn on whether a law applies to a substantial amount

of protected expression”). The proper vehicle to challenge the wide, but not vague, coverage of

The Act is a challenge under the First Amendment.

2. The Media Exclusion

NetChoice also challenges as vague The Act’s exclusion of “online web site[s],

service[s], or product[s] respecting which interaction between users is limited to . . . [c]omments

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

purpose of which is to report news and current events.” Ohio Rev. Code § 1349.09(O)(2).

Vagueness “analysis must turn on the ‘particular facts at issue, for a plaintiff who engages in

some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to

the conduct of others.’” Meriwether, 992 F.3d at 518 (quoting Humanitarian Law Project, 561

No. 25-3371 NetChoice, LLC v. Yost Page 60

U.S. at 18–19 (citation modified)). NetChoice does not argue that the media exclusion is vague

as applied to any of its members. And the district court merely held that the media exclusion

was “eyebrow-raising” because it “practically invites arbitrary application of the law,” again

with no reference to whether it could be arbitrarily applied to NetChoice’s members. Nor is such

a conclusion obvious: the media exclusion applies only to websites where user-to-user

interaction is limited to comments incidental to news content. Many, if not all, of NetChoice’s

members presumably permit user-to-user interaction relating to much more than news and

current events. Since NetChoice does not claim that the media exclusion is vague as applied to

its members, NetChoice’s remaining vagueness claim must also fail.2

III.

The Supreme Court has “made facial challenges hard to win.” Moody, 603 U.S. at 723.

NetChoice did not satisfy its burden to facially challenge The Act. Nor did it satisfy its burden

on its void-for-vagueness doctrine claim. For the foregoing reasons, I join in the judgment of

this court to REVERSE the district court’s judgment and REMAND with instruction to enter

judgment in favor of Yost.3

2

While I agree with some of Judge Clay’s analysis of NetChoice’s vagueness challenge, he ultimately

reverses based on our holding in Libertarian Party of Ohio v. Husted that “a statute will be struck down as facially

vague only if the plaintiff has demonstrated that the law is impermissibly vague in all of its applications.” 751 F.3d

403, 422 (2014) (citation modified). I am not sure that this part of Husted remains good law in light of Johnson v.

United States, 576 U.S. 591, 603 (2015) (disagreeing with the dissent’s objection that “a statute is void for

vagueness only if it is vague in all its applications”). Perhaps Husted states the correct standard, or perhaps a statute

should be struck down for vagueness only when its unconstitutional applications substantially outweigh its

constitutional ones, similar to the standard for a facial First Amendment challenge. But because NetChoice’s

vagueness challenge fails on other grounds, we need not delve into this murky precedent.

3

Yost also contends on appeal that the district court’s injunctive relief was overbroad, see Trump v. CASA,

Inc., 606 U.S. 831 (2025); Free Enterprise Fund v. Public Company Accounting Oversight Board, 561 U.S. 477

(2010). Because we vacate the injunction altogether, we need not decide whether that relief was overbroad.

No. 25-3371 NetChoice, LLC v. Yost Page 61

_________________

DISSENT

_________________

RITZ, Circuit Judge, dissenting. I see this challenging case differently than my

colleagues do. As an initial matter, I would find that NetChoice has standing to assert the rights

of its members’ minor users. And on the merits, I agree with Judge Clay that Ohio’s Parental

Notification by Social Media Operators Act burdens speech protected by the First Amendment.

I also agree with Judge Clay that the Act is content-based and thus subject to strict scrutiny. But

I would hold, however, that the Act fails strict scrutiny.

So, I would affirm the district court’s judgment, although I would narrow the injunctive

relief to apply only to NetChoice’s members. For these reasons, I respectfully dissent.

I.

The parties agree that NetChoice has associational standing to bring a F

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