Free Expression
The Bills Give Political Officials the Power To Pursue Partisan Agendas by Chilling Speech They Don’t Like, and Exposing Individuals’ Private Content and Messages
The internet plays a central role in enabling free speech, a right under the First Amendment that both adults and kids enjoy. However, proposed legislation would have serious unintended consequences for all internet users’ ability to exercise their right to free expression online. State attorneys general would have wide latitude to sue online platforms for content they don’t approve of under the guise of removing harmful content. Online platforms could use content moderation regulations to censor content they don’t agree with. And age verification measures could eliminate the constitutionally-protected right to anonymity as part of free speech. Congress should prioritize kids’ privacy and safety without stripping their rights, and instead empower parents to be active participants in how their children operate online.
Serious Consequences for Free Expression:
State attorneys general - partisan politicians - would have the power to enforce their political agendas and sue internet service providers if they believe subjective content moderation regulations are violated. Internet service providers and platforms may be forced or strongly encouraged to remove and censor any content - including speech protected by the First Amendment - that may affect their liability.
For example, a Republican State Attorney General could sue to stop an online platform from showing minors information about LGBTQ healthcare issues, and a Democratic State Attorney General may sue to stop an online platform from showing kids content from opposing politicians like Donald Trump. As long as they can make a case that the content is harmful to minors, politicians could sue to stop minors from seeing information they disagree with.
One of the bill sponsors already admitted their attention is to go after protected speech. Anti-trans Senator Marsha Blackburn (R-TN) cited the legislation as “protecting minor children from the transgender [sic] in this culture and that influence."
Platforms will be liable for what their users do on their platforms. Compliance likely means platforms would be required to step up user monitoring. Certain platforms could use this as a pretext to censor even legal speech they do not agree with.
The Supreme Court and lower courts have repeatedly affirmed the right to adults’ anonymity as part of protected free speech under the First Amendment. Legislative proposals requiring age verification ignore that right because users would be forced to reveal their identity.
Experts and Advocates Agree the Proposed Bills Would Undermine Free Speech:
“[The Kids Online Safety Act] also effectively gives the Federal Trade Commission and state attorneys general authority to regulate what content platforms show to minors. Can we trust these officials to make the right determinations, without political motivations? This partly explains why numerous organizations oppose one or both bills on the grounds that they interfere with free speech.” - Tracy Miller, George Mason University
“The STOP CSAM Act is not a failsafe way to protect kids online, but rather a disaster for the free expression and privacy of all internet users.” - Jenna Leventoff, senior policy counsel at the ACLU
“People can have legitimate disagreements about what speech is good, bad, or “harmful.” And we do. What we don’t allow, under the First Amendment, is for the government to haul people into court for having difficult conversations. KOSA allows exactly this.” - Electronic Frontier Foundation