After being passed by the Senate earlier this year, the Kids Online Safety Act (KOSA) may now be considered in the House Energy and Commerce Committee. KOSA’s path to this point has been long and fraught with controversy, but this is the closest the bill has come to enactment since it was introduced over two years ago. A House markup outcome will shape its chances of becoming law.
Recent court decisions from the Supreme Court and the Ninth Circuit Court of Appeals lend support to concerns that a critical portion of the legislation likely violates the First Amendment because it will require covered platforms to censor content based on vague standards. "If lawmakers are serious about protecting free expression and children online, they will need to course-correct," said CDT representatives.
Under the Senate-passed version of KOSA, covered services would be required to exercise “reasonable care” in creating or implementing any design feature to prevent and mitigate certain harms to minors, including mental health disorders like anxiety and depression and online bullying. The Federal Trade Commission would enforce this provision, though State Attorneys General would not be empowered to enforce the federal duty of care.
Since its introduction, CDT and allies have consistently stated that the duty of care provision raises significant free expression concerns because it will force platforms to decide what categories of content cause “anxiety” or “depression” or otherwise harm minors. These decisions could be influenced by political actors who might deem content related to sexual education, LGBTQ support, global conflicts, climate change, or other controversial issues as harmful. This content is constitutionally protected, even for minors.
Two recent court decisions provide context for these concerns. In Moody v. NetChoice, the Supreme Court explained that social media platforms’ moderation of content on traditional newsfeeds is editorial decision-making protected by the First Amendment. The Ninth Circuit's decision in NetChoice v. Bonta upheld a preliminary injunction against California’s Age Appropriate Design Code Act’s Data Protection Impact Assessment requirement, which is similar in many respects to KOSA’s duty of care.
In Moody v. NetChoice, the Supreme Court clarified that culling and organizing user posts is an editorial process receiving First Amendment protection. Consequently, any government attempt to regulate that process by requiring certain content restrictions will confront constitutional challenges.
In NetChoice v. Bonta, the Ninth Circuit held that California's DPIA requirement likely violates the First Amendment because it constitutes compelled speech not solely related to commercial interests and therefore subject to strict scrutiny.
Applying this reasoning to KOSA’s duty of care suggests that requiring platforms to develop opinions about what kinds of content lead to harms like anxiety and depression would face similar constitutional scrutiny.
This does not preclude government action in this area entirely; aspects of KOSA's duty unrelated to content restriction may still be constitutional. As previously written by CDT representatives: "Finding that CAADCA's content-restriction aspects are unconstitutional should not jeopardize properly crafted privacy laws; similarly for KOSA."
Congress could instead focus on incentivizing tools and services helping users control their online experiences without infringing on free expression rights protected under Section 230 of the Communications Decency Act.
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