# NetChoice, LLC v. David Yost

> Court of Appeals for the Sixth Circuit · June 18, 2026

URL: https://www.frixlaw.com/law-library/cases/11344779

## Case

- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** June 18, 2026
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Alice M. Batchelder; Eric L. Clay; Kevin G. Ritz
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11344779

## How later opinions describe it (automated extraction)

- 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)
- holding that Ohio’s fundraising and advocacy limitations on judicial candidates satisfied strict scrutiny

## Opinion text

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
│
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,
No. 25-3371 NetChoice, LLC v. Yost Page 6

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,
No. 25-3371 NetChoice, LLC v. Yost Page 8

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

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11344779. Public record. Not legal advice.