Kids Online Safety Act will destroy free expression

Protecting children, however well-intended, should not supersede our core values, and for our laws to be constitutional, they must not trample on our fundamental rights. The founders understood that a world in which we must discard our basic liberties in the name of any aim, however noble, is not a world in which we should wish to live.

Unfortunately, these principles are being cast aside. The proposed Kids Online Safety Act (KOSA) would grant sweeping enforcement powers to the FTC to dictate what kinds of content are suitable for children and to punish any violations at its discretion. Websites would be required to implement age verification using a government ID or comparable document to establish legal identity for all users in order to prevent and/or limit minors’ access.

The parents supporting KOSA may or may not realize this, but they are asking the government to take over their jobs. They might think they are merely asking for minor safety fixes that are long overdue from Big Tech, such as limiting minors’ exposure to targeted advertising and algorithmic feed content. Yet if successful, far from protecting children online, their efforts will only serve to shatter the digital firmament upon which the integrity of our public discourse depends.

It would be a huge mistake for government to play parent, at every level and for good reason. Every child is different, and parents too want different things for their children. Likewise, there is no real societal consensus on what constitutes “harmful content.” There’s barely even a consensus at all. There are no universal safety criteria or definitions that can satisfy everyone’s conflicting concerns, and the government is no more capable of solving this issue than any private sector actor.

More crucially, even if the government could do this, we shouldn’t want it to. When a question remains open-ended, has no verifiable truth conditions, and evolves to the status of public debate, we let the public decide, not government. This is very important — so much so that you could even say it takes precedence over everything else our government is designed to do.

How decisions are made and who decides are the most essential political questions of our time, and our inability to reach a collective answer is why we must instead delegate these to the realm of the individual.

Asking government to manage standards for all online content invites it onto dangerous turf and establishes precedents that are inimical to freedom of expression. As it stands, government is expressly forbidden by our First Amendment from regulating speech, especially any attempts to restrict speech based on its content.

This separation is categorical by design. There is a constant temptation for government to involve itself in more and more aspects of our lives, and unless we draw a clear and firm line, that boundary will become blurred, eroded and eventually nonexistent.

To be clear, this is not just an issue of overreach, although child safety laws like KOSA certainly qualify as such. Rather, there are important societal debates that government must not get involved in, because its presence in those debates undermines the foundations upon which government’s legitimacy depends, precluding the formation of a representative truth-consensus.

Government is empowered to act on our behalf through consensus, but that legitimacy only holds provided the consensus is reached through an open process not subject to outside influence.

If government can weigh in and influence our public debates, then ideas are no longer being vetted freely and openly, and outcomes cease to be a product of societal consensus, becoming subservient to political interests instead.

Public discourse must remain free and open in societies like ours, because it is an irreplaceable vehicle for reaching an agreement on otherwise irreconcilable questions of how decisions should be made and who makes them.

Having the government broadly regulate online content in this manner is not merely a massive overreach but is in fact antithetical to the very foundations upon which our society depends. It is something we must avoid at all costs, even in times of war, because maintaining such a line is what separates open societies like ours from closed societies like those of Russia and China.

If, like me, you are deeply troubled by the Trump administration’s efforts to engage in historical revisionism, then this should be a blaring alarm. In his second term, the president has demonstrated a consistent and increasingly brazen willingness to ignore long-respected rules and traditions, both written and unwritten. Far from shrinking government, he has pushed relentlessly to expand the scope and purview of his offices’ powers at every opportunity, with no regard for the constraints surrounding their legitimate use.

Given what is actually unfolding today, we need not look to our nation’s past for examples of how government censorship powers can be abused. Once empowered to dictate child safety standards for online content, it is no stretch to envision a Trump-FTC extending what is considered “inappropriate” to include anything gender or identity-affirming, or even use it for political retaliation and censorship outright, purging “woke” educational content and “unpatriotic” historical narratives.

There are numerous strong data privacy and ethical grounds on which to reject KOSA and similar proposals. There is also a litany of practical evidence cautioning against it, even without including the United Kingdom’s disastrous recent example, where age verification has quickly proved to be both onerous for users and ineffective at stopping minors. But above all, if we wish to remain a free and open society, we cannot solve our online safety dilemma with authoritarian tactics. Doing so will only serve to enact a state censorship regime.

Jamie Forte, a 2018 graduate of Phillips Exeter Academy, is a research associate with a consulting firm in Washington, D.C.