Flawed Appellate Decision Upholding an Online Parental-Consent Mandate Merits Reversal | American Enterprise Institute
A federal appellate court recently rejected First Amendment and vagueness challenges to an Ohio parental-consent statute that limits minors’ access to social media platforms “reasonably anticipated to be accessed by children.” The Sixth Circuit’s divided decision in NetChoice v. Yost is an unusual setback for NetChoice, an internet trade association that won a similar battle in June. The appellate court’s ruling vacates a 2025 lower court opinion blocking enforcement of the statute, which forbids Ohioans under age 16 from creating accounts on regulated platforms unless they obtain verifiable parental or guardian consent.
Yost, in which the two judges who sided with Ohio didn’t always agree with each other, is troubling for several reasons. One is its exceedingly deferential interpretation—in Ohio’s favor—of the evidence about harms platforms supposedly cause minors. As Techdirt’s Mike Masnick explained, “The first few pages of the decision are nothing but cherry-picked, out-of-context horror stories about what social media does to kids—with no mention of the substantial corresponding evidence that the picture is far more complicated than that.”
Another problem is how Judge Eric Clay determined Ohio’s statute survived the typically fatal strict scrutiny standard of judicial review. He did so by arguably misinterpreting and dubiously distinguishing the US Supreme Court’s formidable Brown v. Entertainment Merchants Association decision. I’ve previously explained that the Court in Brown applied strict scrutiny to invalidate a California parental-consent statute restricting minors’ access to violent video games.
Among other things, Clay didn’t require Ohio to satisfy Brown’s “direct causal link” test, under which a mere correlation between speech and harm won’t satisfy the direct causation requirement. Clay accepted Ohio’s reliance “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.” (emphasis added). He justified this lax evidentiary approach partly by trying to distinguish Brown, reasoning that it involved preventing harm allegedly caused by a specific type of content—violent video games—while Ohio is trying to “mitigate[] the ‘objective effects’ of social media use” more generally and isn’t restricting minors’ access to a particular “subject matter.”
Regarding strict scrutiny’s narrow tailoring requirement, Clay gave short shrift to educating parents about numerous extant, nongovernment-mandated alternatives for safeguarding minors online. He reasoned they aren’t effective because “[p]arents 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.”
Another disturbing, outlier conclusion—one that Clay and Judge Alice Batchelder, who joined him in ruling for Ohio, agreed on—is that NetChoice lacked standing to assert the First Amendment rights of its members’ minor users to engage in and access lawful speech on the regulated platforms. Conversely, Judge Kevin Ritz, who dissented and found—in stark contrast to Clay—that the statute failed strict scrutiny review under Brown, concluded that NetChoice had third-party standing to litigate on behalf of minors’ First Amendment interests.
Third-party standing allows a plaintiff (here, NetChoice) to assert the rights of others (here, minors) who aren’t parties. Typically, it requires a close relationship between the litigant (NetChoice) and the non-party (minors) regarding the right being asserted, plus some hindrance to the non-party asserting the right for itself. The first requirement ensures the litigant would be “as effective a proponent of the right” as the third party.
Ritz deemed these requirements satisfied, observing that “the First Amendment interests of NetChoice overlap neatly with the First Amendment interests of its members’ minor users.” He explained that
by restricting the First Amendment rights of NetChoice’s minor users, the [Ohio statute] restricts the speech that these users can curate and publish on their platforms. NetChoice and its members are incentivized to advocate for more expansive First Amendment rights for its users, because the members’ rights are tied to their users’ ability to express themselves.
Ritz also found minors face obstacles in asserting their own First Amendment rights, including the high cost of litigating cases. Importantly, numerous other courts recognize NetChoice’s standing to assert users’ First Amendment rights.
Clay, however, determined NetChoice cannot assert minors’ First Amendment rights, finding a “unique conflict” and “serious tension” between the interests of NetChoice and minors. He reasoned that 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.” He cynically surmised that “even if a maximalist construction of the First Amendment right were entirely exploitative of and deleterious to minors, NetChoice would presumably still support it.” Batchelder also said the interests of NetChoice and minors “are opposed to one another.”
Yost is a fractured, flawed, and destructive decision for First Amendment rights that merits reversal.
