Is a 15-year-old scrolling TikTok more like getting a tattoo or buying a violent video game?
That’s one legal question at the heart of whether Ohio’s new social media restrictions violate the First Amendment.
Under the new law, children younger than 16 would need to get parental consent before setting up a new social media account. The state law was set to take effect in mid-January, but Chief U.S. District Judge Algenon L. Marbley temporarily blocked it.
On Wednesday, attorneys made their cases about whether the law should be reinstated. Marbley said he would decide the law’s future by the end of the day Friday.
Associate Assistant Attorney General Stephen Tabatowski argued the state had a right to restrict social media contracts with minors to protect their physical and psychological safety — much like a parent signing off on a child’s tattoo.
Attorney Steven Lehotsky, who represents the trade group NetChoice challenging the law, said Ohio’s restrictions were more like a California law that banned selling violent video games to minors. The U.S. Supreme Court struck that law down, saying the government didn’t have “a free-floating power to restrict the ideas to which children may be exposed.”
As of 2023, 35 states had considered legislation to curb teen social media use, and 12 had enacted laws. Montana banned TikTok. Utah set a curfew for minors’ social media use. But these restrictions, like Ohio’s, led to lawsuits during which judges blocked the rules from taking effect.
For social media companies challenging Ohio’s law, the language is too broad and too confusing. A 15-year-old could read an article in The New York Times, but she couldn’t access the same article via Facebook without her parent’s consent.
The law could also affect messaging boards, online video games and a slew of platforms, Lehotsky said. “There are a lot of websites that are at the margins.” Companies that don’t get parents’ consent could face lawsuits and large fines.
But Tabatowski said the way social media sites deliver their content is a problem for teens. The U.S. Surgeon General Dr. Vivek Murthy warned that teens can be exposed to violent and sexual content, bullying and harassment online.
It’s unlikely the Founding Fathers considered Instagram when crafting the U.S. Constitution, but that’s the standard Marbley has to apply. “Even Ben Franklin would not have imagined the Internet and social media,” the federal judge quipped.
Marbley also must decide if this lawsuit is more about social media contracts or more about regulating speech. The latter has more protections.
The lawsuit comes down to a basic question: “Is there a way to regulate social media without regulating speech?” Marbley asked.
Ohio says it’s already done that. The social media companies aren’t so sure.
“The parental consent provision, I’m not sure if there’s anything the state of Ohio could do to get around that,” Lehotsky said
Jessie Balmert is a reporter for the USA TODAY Network Ohio Bureau, which serves the Columbus Dispatch, Cincinnati Enquirer, Akron Beacon Journal and 18 other affiliated news organizations across Ohio.
