A Reversal in Search of a Rationale

For nearly three years, NetChoice has been winning. The tech-industry trade association has fanned out across the country challenging, with much success, state laws that restrict children’s access to social media.

The Sixth Circuit bucked that trend in NetChoice, LLC v. Yost, No. 25-3371 (6th Cir. June 18, 2026), where a divided panel reversed the district court’s injunction that’s been preventing Ohio from enforcing its Parental Notification by Social Media Operators Act. But the manner of Ohio’s win is as interesting as the win itself: three judges, three opinions, and agreement on remarkably little.

What Ohio did

The Act, Ohio Rev. Code § 1349.09, covers operators of sites that let users interact socially, build profiles, accumulate connections, and post content others can view. “In a phrase,” as Judge Clay’s lead opinion put it, the Act regulates “social media companies.” An operator whose site “targets” or is “reasonably anticipated to be accessed by” unemancipated children under sixteen must obtain a parent’s verifiable consent before the child creates an account, show the parent the site’s content-moderation features, and deny access if consent is withheld. The Ohio Attorney General enforces the Act with civil penalties.

NetChoice sued before the law’s effective date, and Judge Marbley of the Southern District of Ohio issued a permanent injunction prohibiting the State from enforcing the Act. Judge Marbley held that the Act infringed protected speech, failed strict scrutiny, and was unconstitutionally vague.

Standing fault lines

At the Sixth Circuit, the panel first splintered on standing. Everyone agreed NetChoice could sue on behalf of its members, which include the social media companies the Act directly regulates. The fight was over whether NetChoice could also sue on behalf of its members’ minor users — the ones who, under the Act, would need their parents’ permission to create social-media accounts.

Announcing the Court’s judgment, Judge Clay said no. As he saw it, the very issues in the case placed the interests of NetChoice’s members in serious tension with those of the children the Act tries to protect. Thus, “NetChoice’s most vigorous advocacy for expansive First Amendment doctrine is not necessarily the most effective advocacy for Children Users’ interests.” Judge Batchelder, concurring in the judgment, arguably went further, calling the platforms’ and minors’ interests “opposed to one another.” Dissenting, Judge Ritz thought the tension between NetChoice’s and minors’ interests beside the point. He noted that, in Craig v. Boren, 429 U.S. 190 (1976), even a beer vendor with a profit motive at odds with its young customers’ interests was nevertheless entitled to assert standing based on those customers’ rights. Still, Judge Clay’s and Judge Batchelder’s rulings shrank NetChoice’s facial challenge to the platforms’ own rights — chiefly, their editorial interest in curating feeds.

Three judges, three views of the merits

The differences between the panel only grew from there.

Judge Clay reached the merits and upheld the Act. Reading the law as a content-based burden on speech, Judge Clay concluded that strict scrutiny applies. But he also concluded that the Act survives strict scrutiny. Ohio’s evidence, anchored in the Surgeon General’s 2023 advisory, outran the thin record that doomed the violent-video-game ban in Brown v. Entertainment Merchants Association, 564 U.S. 786 (2011). And, as Judge Clay saw it, the consent requirement is a “marginal burden” that “precisely targets” the harm Ohio identified.

Judge Batchelder, concurring only in the judgment, declined to reach the First Amendment merits. Citing a different NetChoice case decided recently by the Supreme Court, Moody v. NetChoice, LLC, 603 U.S. 707 (2024), Judge Batchelder explained the significance of NetChoice bringing a facial challenge. That choice meant NetChoice was required to map the Act’s full range of applications and show that the unconstitutional ones dominate. According to Judge Batchelder, NetChoice had failed to do that.

Judge Ritz, like Judge Clay, reached the merits and concluded that strict scrutiny applies. But unlike Judge Clay, Judge Ritz opined that the Act failed strict scrutiny and would have affirmed the district court’s injunction. If these platforms are as dangerous as Ohio maintains, Judge Ritz reasoned, a one-time consent that lets a child keep using them without further oversight is, in Brown’s words, “wildly underinclusive.” As a purported cure, the Act is, quoting District Judge Marbley, a “breathtakingly blunt instrument,” akin to “ban[ning] children from the library altogether absent a permission slip” to prevent them from “access[ing] adult-only sections.”

All told, the decision makes for a tricky bit of precedent. On the case’s central question — whether the Act survives First Amendment strict scrutiny — exactly one judge said yes, one said no, and one declined to answer. The two judges who agreed on the framework (content-based, strict scrutiny) split on the outcome, while the judge who supplied Ohio’s second vote “seriously question[ed] whether strict scrutiny is appropriate in this case.” The majority holds only that NetChoice failed to prove facial unconstitutionality, lacks third-party standing, and loses its vagueness challenge. Beyond that sits what Judge Clay candidly called his and Judge Batchelder’s “limited consensus” — that Ohio prevailed. So although the appeal produced a published decision reviving a major social-media regulation, it settles relatively little, at least as a matter of binding precedent, about whether the regulation is constitutional.

Meanwhile, on the national board

Ohio is one square on a crowded board. Mississippi’s law has been in effect for about a year, the Supreme Court having declined to disturb a Fifth Circuit stay over Justice Kavanaugh’s notable observation that enforcement “would likely violate” the platforms’ First Amendment rights. NetChoice, LLC v. Fitch, 145 S. Ct. 2658 (2025). Florida’s has been enforceable since November, when a divided Eleventh Circuit deemed it likely constitutional under intermediate scrutiny — the tier Judge Clay and Judge Ritz both rejected. Nor is the Sixth Circuit’s work done: it heard NetChoice’s challenge to Tennessee’s law (in effect since January 2025) the same day as Yost; that shoe has yet to drop. Injunctions still hold in several other states, including Arkansas, Utah, Georgia, Louisiana, and Virginia, with appeals pending in several circuits.

And these cases are just one theater of a wider legal conflict. On June 29 the House passed its first kids-online-safety package, 267–117 — a Kids Online Safety Act descendant, minus the duty of care, with uncertain Senate prospects. This spring, New Mexico obtained a $375 million verdict against Meta in a case where it accused the company of, among other things, knowingly deploying addictive algorithms that degraded youth mental health. The day after the New Mexico verdict, a Los Angeles jury delivered a verdict against both Google and Meta in a similar case involving a private litigant. And next month, dozens of state attorneys general and hundreds of school districts likewise asserting addictive-design claims against Meta will square off against the company in a federal multi-district litigation trial in Oakland.

As for this case: NetChoice filed its petition for rehearing en banc on July 16, and, for now at least, the mandate stays put and Judge Marbley’s injunction remains in place.