The Fine Print: Free Speech vs. Safety Under the Kids Online Safety Act

Welcome to my monthly opinion column, The Fine Print, where I dive into a law, policy, or court case and break down how it actually affects our world today, both nationally and locally. From Supreme Court rulings to Congressional legislation, I connect the dots between legal decisions and real life. As a local high school student passionate about law and current events, I’m here to make sense of the legal world, one case at a time.

On May 14th, the bipartisan Kids Online Safety Act, commonly known as KOSA, was re-introduced to the Senate. According to Time, the Act stalled in the House last year, but will now have another chance to actually go into effect. KOSA aims to protect children from online harms resulting in privacy and mental health issues, and its re-introduction comes at a time of rising national and international concern surrounding Big Tech’s exploitative social media algorithms that facilitate access to potentially dangerous content. As of March, Utah became the first state to require app stores to verify users’ ages, and Texas is currently pursuing an extensive social media ban for minors. Late last year, Australia banned social media for children under 16 altogether. If passed, KOSA would take a multifaceted approach, focusing on requiring online platforms to take responsibility for features that implicitly harm minors. However, KOSA is far from perfect, and has received significant backlash from the American Civil Liberties Union (ACLU) and LGBTQ+ advocacy groups because the Act risks censoring free speech online, especially related to LGBTQ+ youth. At a time when censorship is already on the rise, with book bans in classrooms and libraries across the country, we must tread carefully when attempting to regulate the internet, our most vital source of information and resources today.

The current version of KOSA would establish “duty of care” for online platforms, holding them accountable for preventing harm to minors by requiring them to review and remove “design features,” such as algorithms or dark patterns that manipulate users’ decision-making, which can be linked to addiction-like behaviors in minors. KOSA specifically requires all online platforms to allow minors and their parents/guardians to filter content for safety, and may mandate parental consent for certain online activities for children under age 13. But, as asserted by the American Action Forum, the broad language in the bill means that almost any feature of an online platform could be considered a “design feature” if it can encourage the frequency, time spent, or activity of minors on the platform, possibly including push notifications (which would otherwise be considered harmless) and meaning that any videos recommended to a minor could violate the “duty of care” if the content is considered harmful by the FTC. At the same time, the legislation largely leaves the question of what is considered “harmful content” up to the Federal Trade Commission (FTC) to decide, on behalf of the federal government. KOSA would also create the Kids Online Safety Council, which would contain members appointed directly by the President (alongside representatives from Congress), and would make recommendations to Congress regarding emerging or current “risks of harm to minors” associated with online platforms.

This vagueness—combined with extensive federal involvement in the enforcement and expansion of this Act—poses a serious problem, because it will inevitably open technology and social media companies up to swathes of litigation (especially by state attorneys general) regarding access to “harmful content,” as it is defined by the federal government, likely prompting these companies to censor or remove all related content from their platforms entirely, even that which is not actually harmful. Compounded by age-verification systems that would require users to share sensitive information or government ID in order to access online platforms, largely removing the safety provided by anonymity online, KOSA risks reducing any speech that could be construed as being in opposition to current government interests. Objectionable content, as pointed out by the ACLU, could include sexual health resources, information related to the LGBTQ+ community, and even resources relating to recovery from an eating disorder. The Trump administration, specifically, has already taken several steps towards removing online content criticizing President Trump and his policies, such as by promoting the Take It Down Act, which would do just that. KOSA must not become another weapon in this arsenal.

It is important to recognize the nuances of social media, which has perpetuated actual harms to minors, such as sexual exploitation, cyberbullying, and normalization of eating disorders and suicidal behaviors, but has also provided connection and vital resources to young people everywhere. As supported by The New York Times, for LGBTQ+ youth in particular, social media has been more beneficial than not. Sites like TikTok, Tumblr, Discord, YouTube, Q Chat Space, and TrevorSpace have provided LGBTQ+ youth with places to explore their identities, find community and support, and obtain help in addressing dangers at home. As a result, social media usage has actually been found to reduce depression and suicidal thoughts for LGBTQ+ teens, by giving them hope and “a sense of control over their actions and environment.” But content related to LGBTQ+ topics, such as gender identity, has long been associated with the “harmful content” defined by KOSA. In fact, one of KOSA’s co-sponsors, Senator Marsha Blackburn (R-Tenn.), previously stated that a top issue for conservatives to be aware of was “protecting minor children from the transgender in this culture and that influence,” calling out social media to claim that “this is where children are being indoctrinated.” Consequently, the passage of KOSA would very likely result in attacks on LGBTQ+ expression and spaces online, which would be extremely detrimental to the mental health and safety of LGBTQ+ young people.

Social media and other online platforms have essentially taken over our lives, becoming our largest sources of information, connection, and expression all at once. For young people at large, social media usage has been repeatedly linked to anxiety, depression, eating disorders, substance abuse disorders, and suicidal behavior. And according to the New Jersey State Bar Foundation, 95% of teenagers in New Jersey alone use social media, over one third of whom report using social media “constantly.” Even among younger children, about 40% of those aged 8-12 use social media, even though most platforms require users to be at least 13 years of age. As a result, it is imperative that we be able to regulate social media companies and online platforms to mitigate these harmful effects, without also censoring the voices of marginalized communities and reducing access to vital resources concerning reproductive health, mental health, and more, which are discussed online in both healthy and detrimental ways that must be differentiated. By expanding sections of KOSA that return control to users and guardians (requiring content filtering options, the ability to regulate time spent on a platform, restriction of data usage, etc.) and establishing an independent authority to oversee enforcement of the Act, while moving focus away from ambiguous “content moderation,” we can work to address the harms of social media use by minors without infringing on the First Amendment. Young people will be able to benefit from social media’s positive aspects and learn to self-regulate in the future, and leave behind the online dangers that have come to define many online experiences.

To protect free speech in online spaces, West Windsor residents can contact their Senators, Cory Booker and Andy Kim, and urge them to support a revised version of KOSA that addresses online harms without infringing on our civil liberties.