Background
In July 2023, Ohio enacted the Parental Notification by Social Media Operators Act (H.B. 33), codified at Ohio Rev. Code § 1349.09. The statute requires social media platforms that target or are reasonably anticipated to reach children under 16 to obtain verifiable parental consent before a child may access the platform. Operators must present parents with a list of content moderation features, confirm consent by mail or telephone, and deny access without parental approval. The Act defines “operator” broadly to include any website allowing users to interact socially, build profiles, accumulate connections, and create or post user-viewable content. Enforcement is exclusively vested in the Ohio Attorney General, with civil penalties ranging from $1,000 per day for the first 60 days of noncompliance, to $5,000 per day through day 90, and $10,000 per day thereafter.
NetChoice, LLC—a trade association representing major internet companies including Meta, TikTok, Google, and Amazon—sued to enjoin enforcement of the Act, contending that it violated the First Amendment and was unconstitutionally vague. The district court granted a temporary restraining order and preliminary injunction on January 5, 2024, and entered final judgment for NetChoice on April 16, 2025, holding the Act facially unconstitutional under the First Amendment. The court found that the Act imposes blanket parental-consent requirements on constitutionally protected speech and discriminates among operators based on speech content.
The record reflected substantial evidence of social media’s effects on youth: approximately 95% of teenagers aged 13-17 use social media; research links platforms to anxiety, depression, body dysmorphia, and sleep disruption; design features (push notifications, autoplay, infinite scroll, algorithmic feeds) are intentionally engineered to maximize engagement and time-on-platform; and minors are exposed to sexual predation and data harvesting. Social media companies collectively earned approximately $11 billion in advertising revenue from U.S. children ages 0-17.
The Court’s Holding
The Sixth Circuit reversed and remanded with instructions to enter judgment for the Attorney General. A majority held that NetChoice lacked prudential standing to assert the First Amendment rights of minor users, and therefore could not bring a facial challenge to the Act based on those third-party rights. While the court acknowledged that the First Amendment does relax some third-party standing requirements—particularly in overbreadth challenges—it held that prudential limitations do not disappear entirely when First Amendment claims are presented.
The critical factor was a conflict of interest: NetChoice’s members profit from maximizing minor engagement with their platforms regardless of minors’ welfare, while the Act aims to mitigate harms from social media use and exploitative user contracts. Without minor users present to advocate for themselves, the court could not assume they would support the same expansive First Amendment doctrine as the trade association. The court noted that minors might rationally reject the Act’s protections or prefer different constitutional doctrine, but NetChoice—as a profit-driven organization—would presumably advocate for unfettered platform access even if such access proved harmful to minors.
The majority distinguished the fact pattern from typical First Amendment overbreadth scenarios. In cases like Virginia v. American Booksellers Association, the concern is that adults will refrain from protected speech due to stigma or social disapproval. Here, by contrast, parental oversight of minors’ social media use would not chill minor speech through stigma; minors would simply face parental supervision. The court reasoned that this distinction—the absence of the traditional overbreadth harm—weakened NetChoice’s argument for relaxed standing rules. Judge Batchelder concurred in the judgment but reached the merits; Judge Ritz dissented.
Key Takeaways
- Third-party standing is not automatically granted in First Amendment cases, even where overbreadth doctrines apply; courts retain discretion to apply prudential limitations where conflicts of interest exist.
- Trade associations and other organizations cannot assert First Amendment rights on behalf of third parties when the organization’s economic interests conflict with the third parties’ welfare interests.
- Courts should scrutinize whether the asserted First Amendment harm (here, parental oversight) matches the traditional overbreadth concern (here, chilling through stigma or social disapproval).
- The absence of the actual rightsholder in litigation—here, minors—can justify denying standing even where the First Amendment is implicated.
Why It Matters
This decision significantly narrows the ability of industry trade associations to challenge state and federal regulations protecting children online by asserting minors’ First Amendment rights. NetChoice had secured preliminary injunctions in multiple states and had successfully challenged similar legislation elsewhere. The standing holding allows states to pursue minor-protection laws without immediately facing facial challenges brought by well-funded industry groups with opposing economic interests. The majority emphasized that minors themselves—or organizations whose incentives align with minor welfare rather than platform engagement—remain free to bring First Amendment challenges if they choose.
The ruling also clarifies that the First Amendment’s overbreadth doctrine, while more permissive than other areas of law, does not eliminate all prudential standing requirements. Lower courts considering First Amendment challenges by parties with conflicting interests must now engage in a fact-specific inquiry into whether the litigant can effectively advocate for third-party rights. For state legislatures, the decision provides encouragement to pursue regulation of social media’s effects on minors—at least in the Sixth Circuit—without immediately confronting facial constitutional challenges from the platforms themselves.