The Constitution Protects ‘Harmful’ Speech

The Senate is considering a bill that poses serious risks to free speech. The Senate Commerce Committee recently advanced the Kids Online Safety Act by unanimous vote. It would empower government officials—state attorneys general and the Federal Trade Commission—to challenge social-media companies when they fail to prevent “harm to minors.” Invigorated with greater statutory authority, the already aggressive enforcement agencies would have the means to deem any speech unlawful and limit it under the guise of promoting child safety.

According to the text of KOSA, a state attorney general could bring a civil lawsuit against a platform if it doesn’t take down content that falls under the bill’s definition of harmful. For instance, a state could sue Instagram for violating the act’s duty of care if it doesn’t take down posts that make a child feel more anxious.

Like hate-speech laws, the bill would give officials the authority to skirt the First Amendment and censor protected content. After a mass shooting in Buffalo, N.Y., last year, New York swiftly passed a law to curb hateful speech on social media sites. A federal judge granted a preliminary injunction, writing that the “First Amendment protects from state regulation speech that may be deemed ‘hateful’ and generally disfavors regulation of speech based on its content.” KOSA would similarly encourage authorities to pressure companies into removing posts the government considers “harmful.”

Under KOSA, New York could accomplish what it was prevented from doing with its own law. Ari Cohn, a First Amendment lawyer, says the state attorney general could file a lawsuit alleging that a platform failed to prevent “physical violence” that might affect a young user.

The categorization of content as “harmful” is ripe for political misuse. Partisan state attorneys general have been eager to exert power over online discourse. California Attorney General Rob Bonta supported a similar bill in Sacramento that would, if passed, similarly hold social-media companies liable for children’s mental health. If states bring these cases before a judge, they will need to demonstrate that their actions aren’t impeding upon the editorial discretion of platforms and users’ free speech. At best, KOSA enforcement won’t pass legal muster. But that still means costly litigation at taxpayers’ expense. In the interim, social-media companies would have an incentive to take down content that would—absent government intervention—remain on the platforms.

Ultimately, protecting children from online harm should be up to parents, schools and communities. KOSA would result in censorship and the politicization of what constitutes appropriate content for young users. Amid calls from both outside and within the government to curb controversial or unpopular views, lawmakers have a duty to protect Americans’ constitutional rights.

Ms. Chiu is a visiting fellow at the Independent Women’s Forum and a contributor for Young Voices.