NetChoice Failed to Show Irreparable Harm, Says Ohio AG, Opposing Injunction
NetChoice hasn't alleged a “cognizable" First Amendment injury to its members that could establish its "associational standing,” said Ohio Attorney General Dave Yost (R) in a memorandum Friday (docket 2:24-cv-00047) in U.S. District Court for Southern Ohio in Columbus opposing NetChoice’s motion for a preliminary injunction to block him from enforcing the state's Social Media Operators Act.
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The statute took effect Jan. 15, but U.S. District Judge Algenon Marbley's Jan. 9 temporary restarting order immediately blocked its enforcement (see 2401090062). NetChoice, representing social media platforms, is challenging the constitutionality of the statute on First and 14th amendment grounds. Marbley found that NetChoice has standing to bring its claims on behalf of its member companies and Ohio minors.
The law prohibits kids under 16 from entering into a contract with a “covered ‘operator’” without parental consent and requiring online services and website operators that target children, or is reasonably anticipated to be accessed by children, to obtain verifiable consent for any contract with a child, said the memorandum. That includes agreeing to terms of service, registering, signing up, or creating a unique username to access or use the website, service or product, it said.
NetChoice “failed to establish a likelihood of success on the merits,” and it failed to demonstrate irreparable harm, said the memorandum. If an injunction goes into effect, “the public interest and resultant harm to third parties weigh in favor of denial,” it said.
The doctrine of associational standing permits an organization to sue over injuries suffered by its members, even if the organization hasn’t suffered an injury, but an organization must establish its members “would otherwise have standing to sue in their own right”; that the interests the suit seeks to protect “are germane to the organization’s purpose”; and that “neither the claim asserted nor the relief requested” requires individual members’ participation, the memorandum said.
NetChoice lacks constitutional and prudential standing, said the memorandum. Organizational standing fails because the “vaguely alleged ‘diversion of resources’ is no diversion at all," and associational standing fails because the allegations show no discernible cognizable First Amendment injury to NetChoice members as a result of the act, it said. Without organizational or associational standing, NetChoice “cannot invoke the overbreadth exception to prudential standing,” it said. NetChoice hasn’t established a cognizable First Amendment injury to its members, it said.
Though NetChoice asserts the speech rights of its members, “likening its members to traditional media publishers or distributors,” the trade group uses the First Amendment “like a cudgel against any law that might impose accountability upon its members, even when the health and welfare of minors is at stake,” said the memorandum. But covered operators “are not like those traditional entities,” it said, saying operators’ primary product is their users and user data, “not the content they host.”
NetChoice member Mike Masnick, CEO of Techdirt, understands the act requires “covered parental consent for any registration or sign-up, or the creation of a unique username to express themselves on Techdirt,” and that would interfere with his company’s and his expressive rights “'by limiting to whom and how we can communicate to others,’” said the memorandum. The “specious interpretation is belied by the statute’s plain language which requires parental consent 'for any contract with a child ... to register, sign up, or otherwise create a unique username,'” said the memorandum.
If Techdirt didn’t require minors to agree to terms of service before registering with unique usernames, “the statute would not be implicated,” it said. “It follows, then, that the statute does not interfere with ‘to whom and how’ Techdirt can communicate -- only with whom it may contract without parental consent,” it said. The act “affects what Techdirt ‘must do’ -- obtain verifiable parental consent for any contract with a child -- rather than ‘what [it] may or may not say,’” it said.
The act regulates contracts, not speech, the memorandum said. To the extent it covers speech, “it does so only incidentally,” it said. The act survives constitutional scrutiny because the state “has an important and compelling interest in protecting minors by restricting their ability to contract with covered operators without parental consent,” it said. And Ohio has an “important and compelling interest in vindicating parents’ fundamental right to control their children’s care and upbringing,” it said.