Flawed Appellate Decision Upholding an Online Parental-Consent Mandate Merits Reversal | American Enterprise Institute– www.aei.org

A federal appellate court recently rejected First Amendment and vagueness challenges to an Ohio parental-consent statute that limits minors’ access to social media platforms “reasonably anticipated to be accessed by children.” The Sixth Circuit’s divided decision in NetChoice v. Yost is an unusual setback for NetChoice, an internet trade association that won a similar battle in June. The appellate court’s ruling vacates a 2025 lower court opinion blocking enforcement of the statute, which forbids Ohioans under age 16 from creating accounts on regulated platforms unless they obtain verifiable parental or guardian consent.

Yost, in which the two judges who sided with Ohio didn’t always agree with each other, is troubling for several reasons. One is its exceedingly deferential interpretation—in Ohio’s favor—of the evidence about harms platforms supposedly cause minors. As Techdirt’s Mike Masnick explained, “The first few pages of the decision are nothing but cherry-picked, out-of-context horror stories about what social media does to kids—with no mention of the substantial corresponding evidence that the picture is far more complicated than that.”

Another problem is how Judge Eric Clay determined Ohio’s statute survived the typically fatal strict scrutiny standard of judicial review. He did so by arguably misinterpreting and dubiously distinguishing the US Supreme Court’s formidable Brown v. Entertainment Merchants Association decision. I’ve previously explained that the Court in Brown applied strict scrutiny to invalidate a California parental-consent statute restricting minors’ access to violent video games.