LGBTQ and free speech groups are blasting bipartisan federal legislation intended to protect minors online that was passed by the U.S. Senate July 30.
Evan Greer, director of Fight for the Future, is among those alleging the legislation could be weaponized by a second Trump administration to clamp down on LGBTQ-friendly speech online.
"This is not about protecting kids. This is about senators getting to claim they're protecting kids ahead of the election. It makes me sick to my stomach," Greer stated. "Lawmakers could have advanced strong privacy, antitrust, and algorithmic justice legislation to actually address the harm of Big Tech and crack down on surveillance-driven business practices that harm young people and adults. Instead, they're advancing what amounts to a blank check for censorship that can and will be used to suppress lifesaving online resources."
The Kids Online Safety Act, or KOSA, passed a cloture vote 86-1 July 25, which was necessary to move it forward to its final floor vote. California's two Democratic senators offered mixed decisions. Senator Laphonza Butler, a lesbian, voted yes and Senator Alex Padilla, a straight ally, did not vote. Neither responded to a Bay Area Reporter request for comment on their cloture votes, how they will vote July 30, and on what they think of criticism of the legislation.
The legislation passed the Senate July 30 on a 91-3 vote with Padilla and Butler voting in favor. Voting no were Senators Ron Wyden (D-Oregon), Rand Paul (R-Kentucky), and Mike Lee (R-Utah).
KOSA establishes guidelines ostensibly to protect minors on social media platforms. It would require all social media platforms to allow opting out of algorithmic recommendations, and, most controversially, would create a "duty of care" for social media platforms — establishing liability for content not suitable for minors. The law would be enforced by the Federal Trade Commission.
President Joe Biden gave a nod to the legislation during his State of the Union address February 7.
"We must finally hold social media companies accountable for the experiment they are running on our children for profit," Biden said. "And it's time to pass bipartisan legislation to stop Big Tech from collecting personal data on kids and teenagers online, ban targeted advertising to children, and impose stricter limits on the personal data these companies collect on all of us."
The only no vote on cloture was Paul, who, in a letter to colleagues, made the case the legislation is unconstitutional by penalizing speech protected under the First Amendment to the U.S. Constitution.
"While proponents of the bill claim that it is not designed to regulate content, imposing a 'duty of care' on online platforms to mitigate harms associated with mental health can only lead to one outcome: the stifling of First Amendment protected speech," Paul wrote. "The bill contains a number of vague provisions and undefined terms. The text does not explain what it means for a platform to 'prevent and mitigate' harm, nor does it define 'addition-like behaviors.'
"Additionally, the bill does not explicitly define the term 'mental health disorder.' Instead, it references the Fifth Edition of the Diagnostic and Statistical Manual of Mental Health Disorders or "the most current successor edition." As such, the definition could change without any input from Congress," Paul added.
Therefore, Paul argued, protecting children from anxiety and depression could make platforms liable for providing news or discussing political controversies, such as abortion.
"Should platforms stop children from seeing climate-related news because climate change is one of the leading sources of anxiety amongst younger generations?" he asked. "Should they stop children from seeing coverage of international conflicts because it could lead to depression? Should pro-life groups have their content censored because platforms worry that it could impact the mental well-being of teenage mothers? This bill opens the door to nearly limitless content regulation."
The conservative senator's words were echoed by Greer, who argues that the bill could be used by a Republican-led FTC to clamp down on speech related to sexual orientation and gender identity.
"Under a potential Trump administration, the FTC could easily use KOSA to target content related to gender-affirming care, abortion, racial justice, climate change, or anything else that [a] Project 2025-infused agency is willing to claim makes kids 'depressed' or 'anxious,'" Greer stated.
Project 2025 is a right-wing initiative to consolidate power in the executive branch of the federal government should Republican presidential nominee Donald Trump win the 2024 presidential election. The project seeks to impart government policy with conservative Christian viewpoints and reclassify civil service workers as political appointees loyal to the president. Federal agencies like the FBI and the Justice Department would no longer be independent under the plan. Critics charge the proposal is autocratic and its implementation would undermine the separation of powers and the separation of church and state.
Greer also argued KOSA would be unconstitutional if passed.
"Even if it somehow did become law, it would be almost immediately overturned because it's blatantly unconstitutional," Greer stated. "So Big Tech will continue getting away with murder, because Senate leadership are choosing to score political points rather than advance thoughtful legislation. For shame."
The American Civil Liberties Union, Equality Arizona, Equality Michigan, Equality New Mexico, Equality Texas, Equality Virginia, Fair Wisconsin, and the Fairness Campaign all joined Greer's statement.
Equality California had signed on to a past statement in opposition but is now neutral, according to spokesperson Jorge Reyes Salinas.
Reyes Salinas told the B.A.R. two changes in the legislation made EQCA change its position. The first is that it does not require age verification on the platforms; the second is that states attorneys general no longer have enforcement authority.
Now that it has been approved by the Senate, KOSA will have to be voted on in the House of Representatives and signed by Biden before becoming law.
LGBTQ Agenda is an online column that appears weekly. Got a tip on queer news? Contact John Ferrannini at [email protected]
Updated, 7/30/24: This article has been updated now that the Senate has passed KOSA.
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