CINCINNATI (CN) - State governments trample minors' First Amendment guarantee of free speech when they enforce laws that require parental consent online, an internet trade association told a Sixth Circuit panel on Wednesday.

NetChoice, with members including Google, Meta and YouTube, argued at the federal appeals court in a pair of cases involving recent laws passed in Ohio and Tennessee.

The two conservative states championed internet safety when their legislatures passed bills requiring minors to obtain parental consent before creating accounts on social media websites like Facebook and X. Tennessee House Bill 1891 also required all users of such sites to provide age verification.

NetChoice sued to prevent enforcement of both laws, with mixed outcomes.

A federal judge permanently enjoined Ohio's Parental Notification by Social Media Operators Act in April 2025 and determined that, despite Ohio's laudable efforts to protect children from the dangers of social media, the law violated minors' free speech rights.

Tennessee was a different story, however, and a federal judge in the Volunteer State denied NetChoice's motion for a preliminary injunction in June 2025.

In that case, U.S. District Judge Eli Richardson, an appointee of Donald Trump, declined to reach the merits of NetChoice's First Amendment claims and found the trade group could not establish a threat of imminent and irreparable harm.

Attorney Mathura Sridharan from the Ohio Attorney General's Office focused her remarks Wednesday on challenging NetChoice's standing to pursue First Amendment claims.

"NetChoice has standing to pursue the rights of its members, but not the rights of children. Those positions are antagonistic and create an open and obvious conflict," she told the panel.

The state's attorney emphasized Ohio's law deals with conduct related to contracts entered into by minors - not speech - an area states have historically been permitted to regulate.

Attorney Erin Murphy of the Virginia-based firm Clement and Murphy, argued both cases on behalf of NetChoice and disputed Sridharan's interpretation of Ohio's law.

"This is a classic case of a law that burdens far too much speech without advancing enough of the state's interests," Murphy told the court. "This law implicates the First Amendment in all of its applications."

U.S. Circuit Judge Kevin Ritz, an appointee of Joe Biden, asked the trade association's attorney if it relied on third-party standing to bring its lawsuit.

"We have First Amendment standing ourselves," the attorney answered. "It only matters that at least some of our members are engaged in First Amendment activities. User interests are only asserted as part of our First Amendment challenge because it is a facial challenge to the law."

Murphy switched seats to argue on behalf of NetChoice as appellant in the Tennessee case and called Richardson's refusal to consider the merits of her client's case "unsustainable." She said the lower court's decision essentially requires a state to explicitly disclose its intent to sue a violating company for any possibility of injunctive relief.

"This would create terrible, terrible incentives for cases challenging government laws," the attorney told the panel.

Attorney Matt Rice argued on behalf of Republican Tennessee Attorney General Jonathan Skrmetti, and much like his counterpart from Ohio, attacked NetChoice's standing.

He emphasized the majority of the trade association's members do not create any content themselves, and therefore lack standing to bring free speech claims.

"Disseminating third-party speech is not the same as disseminating your own speech. It is not protected activity under the First Amendment," Rice told the panel.

He also seconded Sridharan's point about the core issue of both state laws: contracts.

"We're not preventing minors from accessing this. The only thing that's preventing minors from accessing is the social media platforms' desire to maintain their ability to exploit kids through lopsided legal contracts. That may be their preferred business model, but it's not a First Amendment right," Rice said.

In her rebuttal, Murphy countered Rice's claim about the dissemination of third-party speech, which she called "surreal."

The attorney cited the U.S. Supreme Court's 2024 decision in Moody v. NetChoice LLC, in which a unified court ruled editorial and content moderation functions exercised by sites like YouTube implicate the First Amendment, and said the decision clearly grants standing to her client.

Senior U.S. Circuit Judge Alice Batchelder, an appointee of George H.W. Bush, and U.S. Circuit Judge Eric Clay, an appointee of Bill Clinton, also sat on the panel.

No timetable has been set for a decision in either case.

Source: Courthouse News Service