Legislating in the Digital Age: Ohio’s Attempt to Implement Age-Based Restrictions on Access to Social Media Platforms

by Stella Brocker, Associate Member, University of Cincinnati Law Review Vol. 94

I. Introduction

Across the United States, teenagers spend an average of 4.8 hours per day on social media platforms such as YouTube, TikTok, and Instagram.¹ A growing body of research links heavy social media use to worsening mental health outcomes among adolescents.² Teens, who report the greatest amount of social media engagement, also report higher rates of suicidal ideation and negative body image than their peers who use the same platforms less frequently.³ Research further suggests that excessive social media use may affect adolescent brain development in areas related to “impulse control, social behavior, emotional regulation and sensitivity to social punishments and rewards.”⁴ Despite these documented risks, social media platforms also confer meaningful benefits on young people.⁵ For many adolescents, social media can foster a sense of community, connection, and belonging, particularly for members of marginalized groups.⁶ These platforms also function as a primary source of information for young people, shaping how they learn about current events, political issues, and matters of public concern, locally, nationally, and even globally.⁷

In multiple states, legislators have drafted laws addressing the documented harms of excessive social media use in minors, but this interest must be carefully balanced against upholding the constitutional right to freedom of speech.⁸ Ohio legislators are currently attempting to pass the Parental Notification by Social Media Operators Act, which requires social media providers to obtain parental consent from users under age 16.⁹ The Act was signed into law in July of 2023 but was ultimately enjoined by the Ohio Southern District Court following a constitutional challenge.¹⁰

This article explores whether legislation imposing age-based restrictions on social media use violates fundamental constitutional protections through an in-depth analysis of Ohio’s Parental Notification by Social Media Operators Act (the “Parental Notification Act”). Part II provides background on the constitutional rights implicated by such regulation and analyzes the District Court’s decision in NetChoice LLC v. Yost, where the Court has decided to enjoin the enforcement of the Parental Notification Act. Part III discusses the law’s broader implications and considers alternative strategies that may better protect young people without unnecessarily restricting access to information. Finally, Part IV concludes that, as it is currently structured, the blocked Ohio law is unconstitutional, and the Ohio legislature should implement alternative strategies that do not enact content-based restrictions on speech.

II. Background

In recent years, several states have sought to enact legislation restricting social media access to children and teens with varying levels of success.¹¹ Activist groups often immediately challenge these measures on constitutional grounds, most commonly under the First Amendment’s protection of free speech and the Fourteenth Amendment’s Due Process Clause which protects the fundamental rights of parents to make decisions concerning the care and upbringing of their children.¹²

Utah was the first state that attempted to pass comprehensive regulation in this area.¹³ In 2023, state lawmakers in Utah drafted a bill imposing age restrictions and parental consent requirements on minors’ social media use, citing a growing concern over the troubling effects of excessive usage on the mental health of adolescents.¹⁴ However, when threatened with a lawsuit over the potential “chilling effect” on free speech, legislators revised the bill, removing the parental consent requirement to pass constitutional muster.¹⁵ Even with this revision, the law was again challenged in federal court and was temporarily blocked by the judge.¹⁶ This decision was appealed, and the final outcome has yet to be determined.¹⁷

In Florida, legislators pursued a similar bill that completely restricted social media access for users under 14 years old and required parental consent for those aged 14 and 15 to access social media sites.¹⁸ The bill was initially blocked by a federal judge, but the decision was later overturned on appeal, allowing the law to be enforced as written.¹⁹ The Court of Appeals found that although the First Amendment was implicated, the public interests it served outweighed the possible harms of any restriction on speech.²⁰ Currently, the state of Ohio is engaged in a similar legal battle with the outcome still uncertain, particularly in light of the conflicting decisions in other jurisdictions.²¹

A. NetChoice LLC v. Yost

In Ohio, legislators are attempting to pass a law requiring certain social media platforms to obtain parental consent before allowing users under the age of 16 to access them.²² The Parental Notification Act was set to take effect on January 15, 2024, before the Ohio Southern District Court enjoined its enforcement following a constitutional challenge by NetChoice.²³ NetChoice is an association of online companies, including Google, YouTube, and Meta, the parent company of Facebook and Instagram.²⁴ These platforms collectively facilitate the exchange of massive amounts of speech, enabling people of all ages to communicate, research, and share content by generating and viewing billions of posts and status updates every day.²⁵

Like legislators in several other states, Ohio lawmakers cited mounting research identifying potential harms associated with minors’ social media use as justification for regulating social media conglomerates.²⁶ The Parental Notification Act regulates online providers that offer products or services that target children or are reasonably likely to be accessed by children.²⁷ In determining whether a website targets children, courts may consider factors such as subject matter, design elements, and visual content.²⁸ To enforce the Parental Notification Act’s provisions, it authorizes the Ohio Attorney General to bring a civil action for a temporary restraining order or injunctive relief against any entity that violates its terms.²⁹ If the court finds that the Parental Notification Act was in fact violated, it shall impose civil penalties, starting at $1,000 per day for the first 60 days and increasing up to $10,000 per day after 91 days.³⁰ On January 5, 2024, NetChoice sued the state of Ohio, claiming that the Parental Notification Act violated the First and Fourteenth Amendments of the Constitution, thereby initiating the litigation that now frames Ohio’s role in the broader national debate over the regulation of minors’ access to social media.³¹

B. Freedom of Speech Concerns

A central argument advanced by activist groups and social media companies challenging age-based restrictions is that such laws violate the First Amendment’s free speech clause, which provides that, “Congress shall make no law… abridging the freedom of speech.”³² The Supreme Court’s decision in Brown v. Entertainment Merchants Association offers particularly illuminating guidance on the constitutionality of age-based restrictions.³³ In Brown, the state of California attempted to pass a law that imposed age-based restrictions on the sale of violent video games.³⁴ The Court emphasized that the applicability of the First Amendment does not diminish, “when a new and different medium for communication appears.”³⁵ One of the most basic principles of the First Amendment is that the government may not restrict expression based upon its content.³⁶ If the government attempts to restrict content-based expression, the act must pass strict scrutiny.³⁷ To pass strict scrutiny, a government act must be “justified by a compelling government interest” and “narrowly drawn to serve that interest.”³⁸

The Court in Brown rejected the idea of creating an exception to this principle that would allow the government to impose content-based restrictions on speech directed at children.³⁹ While the Court acknowledged that a state has a legitimate interest in protecting minors from harm, it made clear that it does not allow them to freely limit children’s access and exposure to ideas.⁴⁰ The Brown Court also looked to the historical traditions of the United States, focusing on how children have long been exposed to violence and other potentially unsuitable content through books, movies, and even comic books.⁴¹ This historical context reinforced the precedent that children, like adults, are entitled to First Amendment protections.

C. The District Court’s Decision

In making its decision in Yost, the District Court first emphasized that the Parental Notification Act implicates the First Amendment because it requires minors to obtain parental consent before accessing significant categories of protected expression available on covered social media platforms, specifically those that offer products or services that target children or are reasonably likely to be accessed by children.⁴² The Court explained that this condition burdens minors’ ability to engage in speech themselves.⁴³ Although the State argued that the Parental Notification Act affected only minors’ ability to contract, the Court explained that First Amendment protections don’t apply solely to the direct suppression of speech but also to activities that facilitate speech.⁴⁴ By regulating only websites whose primary function is social interaction, the Parental Notification Act leaves other online services unregulated and, in doing so, distinguishes between different categories of speech.⁴⁵ The Parental Notification Act focuses on features that differentiate user-generated speech from speech generated by the site itself, thus operating as a content-based regulation, and it is therefore subject to strict scrutiny.⁴⁶

Ohio asserted several compelling interests in support of the law, including protecting minors from mental health harms, safeguarding their personal data, and limiting exposure to online sexual predators.⁴⁷ It also asserted that a compelling interest exists in safeguarding parental rights to make childcare decisions.⁴⁸ The Court was not fully convinced that these were compelling interests but held that, even if they were, the Parental Notification Act is not narrowly tailored to serve them.⁴⁹ Under the Parental Notification Act, minors can still enter into contracts with some sites without parental permission, making the Parental Notification Act under-inclusive and weakening the claim of a protective rationale.⁵⁰ The Parental Notification Act is simultaneously over-inclusive, as it enforces a complete government speech restriction “subject to parental veto” rather than solely protecting the interests of concerned parents.⁵¹ The Court also disagreed with Ohio’s argument that protecting parents’ rights is applicable here, finding that the state failed to distinguish it from Brown, where the Court rejected it as a legitimate state interest.⁵²

The Court emphasized that while the Ohio legislature may have had positive intentions, the “response to a societal worry that children might be harmed if they are allowed to access adult-only sections cannot be to ban children from the library altogether absent a permission slip.”⁵³ Because the Parental Notification Act is not narrowly tailored to serve the proposed interests, the Court held that it failed to satisfy strict scrutiny.⁵⁴ The Court also highlighted concerns about vagueness in the Parental Notification Act’s specific language, raising the possibility that many social media site operators may be unsure whether their site “targets children” or is reasonably likely to be accessed by children.⁵⁵ Ultimately, the Court issued a permanent injunction on the enforcement of the Act, though this decision has been appealed and is currently pending before the Sixth Circuit.⁵⁶

III. Discussion

The District Court’s decision to block the Parental Notification Act illustrates how some courts have responded to this kind of legislation. However, not all courts have taken the same view, and it is unclear how the Court of Appeals for the Sixth Circuit will rule on this case should it accept it. This section considers the implications of reversing the District Court’s decision and explores alternative strategies for lawmakers that are less restrictive in addressing concerns about youth engagement and social media.

A. Implications of Lifting the Injunction

Allowing the Parental Notification Act to take effect, would raise substantial concerns for free speech protections and democratic participation.⁵⁷ The District Court highlighted the importance of minors’ access to uncensored speech in preparation for becoming informed voters once they reach 18.⁵⁸ Reversing this decision would create an environment in which minors under the age of 16 would be unable to engage in political discourse online or to consume information about current events.⁵⁹ This would limit minors who are unable to secure parental consent to only having two years to freely access uncensored speech and the ability to engage in political discourse on social media before being able to vote.

When deciding whether to vacate this injunction, it is important to consider this decision based on how social media has evolved and is utilized today. While social media sites may once have been merely places to post status updates and catch up with friends, they now encompass a wide array of political discourse and discussions, and young people are increasingly turning to them for political information and news coverage.⁶⁰ In fact, a recent survey found that 77% of people ages 18-34 chose a social media platform as one of their top three sources of political information during the 2024 election.⁶¹ As media consumption in younger generations shifts away from traditional news outlets and moves toward social media, imposing restrictions on minors’ access to social media may not only shield them from harmful content but may also limit their exposure to important political information and ideas.⁶²

Voters having access to accurate and reliable information is crucial to a healthy democracy.⁶³ Inadequate access to accurate information, most especially as minor, can leave people unable to make informed political decisions, which can “erode trust in democratic institutions and contribute to divisions within society.”⁶⁴ An informed electorate is crucial to having an effective, functioning democracy, and legislation that imposes restrictions on minors’ access to social media is contrary to this.⁶⁵ Lifting the injunction and moving forward with the Parental Notification Act would clear the way for younger generations to become increasingly politically uninformed, painting a frightening picture for the future of Ohio and potentially the United States if this type of legislation becomes more widespread.

B. Alternative Strategies for Lawmakers

Although broad restrictions on minors’ access to social media raise serious constitutional and democratic concerns, there are still pressing issues associated with social media use among young people. In seeking to remedy these concerns, lawmakers can consider alternative strategies that are far less restrictive of free speech rights. One such strategy is design-focused legislation where legislators can implement design codes that impose limitations on how companies store and use minors’ personal data and require more strict default privacy settings.⁶⁶ When social media sites enable the storage of user data to create a personalized algorithm, every video seems specifically designed for the viewer, leading to excessive screen time.⁶⁷ Design-focused legislation would require companies to redesign their social media platforms to limit their ability to engage in these manipulative practices.⁶⁸ Measures like these, which focus on addictive design elements rather than the substance of speech, can help to curb many of the concerns surrounding social media, without placing unnecessary restrictions on the actual content and dissemination of information.

Certain states have already begun to employ these strategies. For example, New York has prohibited nighttime notifications without parental consent, addressing an addictive platform feature closely associated with sleep distraction, deprivation, and negative impacts on mental health.⁶⁹ California legislators passed the Protecting Our Kids From Social Media Act, which targets addictive algorithms and mandates that minors’ accounts be automatically set to private unless parental consent is obtained.⁷⁰ The Protecting Our Kids From Social Media Act was partially enjoined by a U.S. District Court, but the Court of Appeals for the Ninth Circuit ultimately found that the provisions relating to privacy were not content-based and, thus, passed constitutional muster.⁷¹

Thus, these strategies do not raise the same constitutional concerns as total age restrictions and likely will be much more effective in addressing the specific concerns associated with minors’ social media use. Tech trade associations, like NetChoice, continue to challenge these regulations; however, targeting the specific design elements that can lead to addictive tendencies avoids regulating speech itself and is more likely to survive these challenges.⁷² Ultimately, this clears the way for healthy, uncensored social media consumption in children and teens.

IV. Conclusion

Ohio’s Parental Notification by Social Media Operators Act suggests broad restrictions to address the negative impacts of social media use on children. Should it choose to accept the case, the Court of Appeals for the Sixth Circuit should affirm the District Court’s decision to permanently block this law from going into effect to safeguard the fundamental right of free speech. If the Court reverses the decision, the implications could be extremely harmful to democracy, denying minors access to information they need to mature into informed voters at the age of 18. Legislators should instead enact design-focused legislation that targets the addictive features of social media platforms directly. Used as an alternative, design-focused legislation may be able to addresses the harmful effects of social media use on children without restricting access to speech.

Cover Photo by Austin Distel on Unsplash

Stella Brocker

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