The proposed bi-partisan Kids Online Safety Act purports to address concerns that social media exacerbates depression, eating disorders, and a host of other mental health problems among our nation’s youth. Sixty-five Senators, including conservative stalwarts such as Ted Cruz of Texas, Josh Hawley of Missouri, and Ohio’s J.D. Vance have co-sponsored the bill, and Joe Biden endorsed it at the State of the Union. On April 9, Rep. Gus Bilirakis of Florida, together with Representatives Kathy Castor of Florida, Erin Houchin of Indiana, and Kim Schrier of Washington, introduced it to the lower chamber. 

On the surface, this bill seems appealing. Who could oppose children’s safety and mental health? Unfortunately, KOSA exploits this concern to incentivize censorship and fund research that is likely to be used to advocate for more speech suppression. 

Consider KOSA’s censorship carrot. The bill would create a duty of care requiring “covered platforms,” including free speech platforms like Rumble and X, to take “reasonable measures” to prevent “online bullying and harassment.” The bill does not define “bullying and harassment.” In a world where many maintain that “speech is violence,” it is not surprising that these terms have been invoked as go-to justifications for deplatforming conservatives. YouTube’s “harassment and cyberbullying” policies include “insults” and “slurs”  based on “protected group status” such as “immigration status” and “gender identity and expression.” Thus, misgendering or calling someone an illegal alien has been deemed harassment. Before Elon Musk took over Twitter, the platform applied its targeted harassment as including misgendering and inviting newly-unemployed journalists to “learn to code” and later to attack satire.   

FOSA also funds the National Academy of Sciences to make additional “recommendations related to public policy” about “remedies regarding the harms to minors posed by social media.” The National Academy has already begun similar studies with a report on Social Media and Adolescent Health. The report’s lead editor is Boston University Public Health Professor Sandro Galea, who previously called “hate speech” a “public health issue” and singled out then President Trump’s immigration policies as well as “policies [that] are being promulgated that will limit hard-won gains in transgender rights” as “particularly dangerous from a population health vantage.” Unsurprisingly, the National Academy’s chapter on “online harassment” states “political name calling on social media is cited as a starting point for digital harassment.” 

The bill also empowers the Federal Trade Commission and State Attorneys General to enforce and interpret the law. Many Democratic State Attorneys General have demanded platforms censor “disinformation” and “hate speech” under the guise of fighting harassment. For example, in 2020, three state AGs wrote to Facebook “to request that you take additional steps to prevent Facebook from being used to spread disinformation and hate and to facilitate discrimination” in the form of “redress for users who fall victim to . . . harassment.”  Dozens more have written similar letters. KOSA would give these advocates yet another arrow in a considerable quiver from which to draw in order promote censorship of ideological adversaries. That is not to mention left-aligned plaintiffs’ lawyers who might leverage the “duty of care” the statute creates to go after free speech platforms.

The FTC hinted at what it would consider “reasonable measures” to combat harassment in a 2022 report, Combatting Online Harms Through Innovation. The report outlined “reasonable policies, practices, and procedures” for digital platforms to use AI to address “harms” such as “hate crimes,” “election-related disinformation,” and “harassment.” Among the recommendations: tech companies needed to retain and “create and maintain diverse, equitable, inclusive, and accessible cultures” for “groups like Black in AI, Queer in AI, and LatinX in AI.” Despite the enthusiasm for FTC Chair Lina Khan among some populist conservatives, this record does not make the Commission seem ideal for determining “reasonable” policies around online speech. 

That KOSA has bi-partisan support is reason for more, not less, skepticism. Section 230 itself, the legal shield Big Tech used to censor disfavored speech in the runup to the 2020 election, was a bi-partisan achievement. 

As a father of five, I understand the concerns about how social media affects kids, and we limit our kids’ screen time. No taxpayer-funded study is necessary to know that spending hours a day glued to screens is not good for anyone, much less children. 

But empowering unelected bureaucrats and State AGs to enforce vaguely written rules about “bullying and harassment” will do nothing to help children’s mental health and lead to more censorship and lawfare against conservatives.