Recently, Sens. Cruz (R-Texas), Schatz (D-Hawaii), Murphy (D-Ct.), and Britt (R-Ala.) introduced the Kids Off Social Media Act (KOSMA). This bill would impose age and content restrictions on social media platforms. The bill would also require social media companies to terminate accounts the platform “knows” belong to individuals under 13. In addition, it prohibits platforms from delivering content through recommendation-based algorithms to accounts owned by users under 17. This bill—like other similar legislative efforts to protect child safety online—faces glaring constitutionality issues.
The issues with KOSMA are twofold. First, it would inevitably lead to an age verification mandate for social media platforms. Secondly, it would impose content-based restrictions on protected online speech and curation. Both measures are a clear violation of the First Amendment. Age verification would significantly erode the rights of anonymous expression online. Further, the content-based restrictions would contravene companies’ First Amendment right to curate and distribute constitutionally-protected expression through the method they best see fit.
The shortcomings of such legislation have been well established. The discussions surrounding other major safety legislation proposals, such as the Kids Online Safety Act, have shed light on how age-based restrictions on online platforms will inevitably devolve into a de facto age verification mandate. Such mandates are unlikely to pass constitutional muster.
KOSMA even makes an attempt to curtail this issue by adding a clause that explicitly states that the provisions in the bill should not be interpreted as an age verification mandate. However, such a clause is little remedy to the bill’s incentive structure that inevitably pushes companies to verify a user’s age. The bill’s age-based mandates are largely built on a spuriously defined standard of knowledge for platforms. Such mandates expose them to legal liability if courts believe that platforms had “reasonable and prudent” knowledge about their users’ ages, and they failed to comply. Thus, a profit-maximizing company will reasonably resort to the most stringent and unimpeachable age verification standard to take those legal risks out of the picture.
The bill’s constitutional issues are not limited to its age-based restrictions. The bill also intends to dictate how and when platforms can use recommendation algorithms to present and distribute the content they host. The bill would impose a regime where platforms can freely use recommendation algorithms to users over the age of 17. When presenting content to users in the 13-16 age cohort, they may only do so with algorithms based on a handful of approved data markers. It also includes a carveout for presenting content teens have selected, followed, or subscribed to, as long as it is presented in chronological order. Such micromanagement on how platforms decide to promote or distribute the content they host makes this a bill that explicitly aims to regulate platforms’ speech.
Existing legal precedent indicates that this sort of content-based regulation of speech is unlikely to pass constitutional scrutiny. Multiple court rulings by the lower courts have consistently upheld platforms’ right to exercise editorial discretion over content. This includes what they decide to display and distribute, recognizing it as constitutionally protected speech under the First Amendment. By limiting the criteria platforms are allowed to use for their content ranking decisions, the bill would clearly violate platforms’ First Amendment right to editorialize.
Protecting children from online harm is a worthwhile goal. However, it cannot justify trampling on Americans' constitutional rights. KOSMA, unfortunately, falls prey to this mistake. Legislators should look to other alternative measures that could more effectively protect children. For example, they should look into the Invest in Child Safety Act, a bill that would ensure that the government appropriately funds the agencies tasked with going after the malicious actors targeting children for predation and abuse. Instead of trying to curtail online speech, legislators should ensure that government fulfills its basic responsibility of going after criminals harming the population.
