Ohio’s social media parental consent law has been on hold since January. Now, a tech company trade group is asking the judge to block the law permanently. At the same time, momentum appears to be building for alternative approaches meant to reduce the amount of time kids spend on social media.
How we got here
Last summer during budget negotiations, Ohio Gov. Mike DeWine included a provision requiring social media companies get “verifiable” parental consent before allowing kids younger than 16 to set up accounts. The House nixed the idea, and the DeWine administration made a strong public push to put the language back. Lt. Gov. Jon Husted, the driving force behind the idea, invoked stories of kids in mental health crisis, insisting social media is “leading to the deaths of young people.”
But the legislation established a convoluted verification system that the federal judge described as “a breathtakingly blunt instrument” for limiting the harm of social media.
There is one glaring problem: how do you define “social media?”
The tech trade group NetChoice and the judge’s opinion criticize the law’s 11-factor list for determining which websites are subject to consent requirements. That list includes several broad and undefined terms like “language” or “design elements.”
NetChoice and the judge found similar faults with the law’s carve-outs for so-called “widely recognized” media outlets whose “primary purpose” is reporting “news and current events.”
“Such capacious and subjective language practically invites arbitrary application of the law,” the judge wrote in his order granting a preliminary injunction.
Summary judgment
NetChoice’s request for summary judgment builds on its previous filings. The organization first aimed to vindicate teens’ internet use. Far from just posting memes, NetChoice contends, kids are using the internet for “expression, education and civic engagement.”
“They also pursue academic and extracurricular activities,” NetChoice adds, “publish artistic works, shine a light on meaningful causes, find communities, share advice, and support their peers.”
But the scope of Ohio’s consent laws threaten their access.
The filing notes nothing in the law’s 11-factor scheme explains how a site can determine whether it’s being accessed by 15 vs. 16-year-olds — the age cut off in Ohio’s law. NetChoice notes because the list is framed as factors the state Attorney General “may” consider, it’s not even exhaustive.
“Given the deliberately free and open nature of the Internet in America,” NetChoice argues, “all sorts of websites — even those directed primarily at adults — can “reasonably anticipate” being accessed by users younger than 16.”
The statute’s broad reach, NetChoice argues, prompts questions without satisfying answers. Exceptions for widely recognized media outlets would presumably protect access to the New York Times or CNN. But about local news outlets, NetChoice wonders — do they qualify as “widely recognized?”
Conversely, it would be hard to dispute a website like Facebook falling within the statute’s scope. But by the same token, Dreamwidth, where users can post their writing or art, would be subject to the law as well. Facebook saw more than 3 billion monthly active users during the fourth quarter of 2023. According to its court filing, Dreamwidth sees about 2 million unique visitors in a year.
Dreamwidth noted the law’s fines “for a single mistake would exceed our net profit for 2022 by day 19 and exceed our total gross income for the entirety of 2022 by day 95.” The company added that even absent fines the cost of compliance “will be substantially prohibitive.”
NetChoice adds the law does nothing to protect kids from bullying or sexual predators after parents give their one-time consent. And although it’s meant to limit minors’ access to social media platforms, websites would likely be forced to check every users’ age and identity, which would limit the ability to browse anonymously.
In a press release announcing their filing, NetChoice Litigation Center director Chris Marchese said “Ohio’s law infringes on constitutional rights while failing to achieve the state’s objective of safeguarding children. It undermines the privacy and security of all Ohioans — regardless of age — and their constitutionally protected right to free speech.”
Doors closing, windows opening?
Although the state’s social media consent law appears to be on shaky footing, consensus may be building for different measures to disrupt kids’ social media use. And despite the judge’s description of Ohio’s law as a blunt instrument, arguably an even blunter approach is gaining steam: just take kids’ phones away.
During his recent state of the state address, Gov. Mike DeWine encouraged lawmakers to come up with a replacement for Ohio’s social media consent law, but he also endorsed a move to minimize students’ access to cellphones at school.
Already several school districts around Ohio have taken the initiative to limit access to phones, and they encouraged DeWine to consider taking the policy statewide during a roundtable ahead of his state of the state address. Outside of Ohio, schools have found success placing phones in individual locking pouches.
Last month, the state Senate tacked school cellphone provisions onto an unrelated bill that had already passed the House and sent it back across the hall.
The law would require every school board in the state to develop and post a student cellphone policy that would limit use during the school day as much as possible and specifically reduce phone related distractions in class. It carries an exception for students whose individual education plans permit devices to assist learning or monitor a health concern.
House Speaker Jason Stephens didn’t immediately embrace that approach, and House lawmakers have a competing proposal currently awaiting hearings.
This story was originally published by the Ohio Capital Journal and republished here with permission.
