Even KOSA’s Supporters Are Worried About It Chilling Speech

Some Democrats in the House, even some on the House Energy and Commerce Committee that just advanced the bill, have said they can’t vote for this version of the bill, in part because it differs from the Senate version. The Senate passed its version in a 91-3 vote in July.

If passed as currently written, KOSA would create regulations concerning the features and functions of platforms subject to the bill, designed to address allegedly “addictive” qualities of social media and to prevent a litany of supposed harms caused to minors using social platforms.

According to the report from The Hill linked above, Rep. Anna Eshoo (D-Calif.) feels some important sections of the bill were “hastily introduced,” citing specifically the changes to language surrounding a “duty of care” the Act would create for the platforms it covers.

Rep. Anna Eshoo (D-Calif.) said she chose to vote against the bill because some key sections were “hastily introduced,” pointing to the duty of care changes.

“I do think that in some very important areas, that this bill needs to be strengthened,” she said Wednesday, adding, “So I opt for leverage at a conference and that’s why I’m going to vote against the bill, not because it’s a bad one, it’s a good one.”

In criticizing KOSA, Jason Kelly and Aaron Mackey of the Electronic Frontier Foundation (EFF) noted that the “biggest shift to the duty of care is in the description of the harms that platforms must prevent and mitigate.”

“Among other harms, the previous version of KOSA included anxiety, depression, eating disorders, substance use disorders, and suicidal behaviors, ‘consistent with evidence-informed medical information,’” Kelly and Mackey wrote in a recent blog post. “The new version drops this section and replaces it with the ‘promotion of inherently dangerous acts that are likely to cause serious bodily harm, serious emotional disturbance, or death.’ The bill defines ‘serious emotional disturbance’ as ‘the presence of a diagnosable mental, behavioral, or emotional disorder in the past year, which resulted in functional impairment that substantially interferes with or limits the minor’s role or functioning in family, school, or community activities.’”

Interestingly, while KOSA enjoys broad bipartisan support, both Democrats and Republicans in Congress have expressed concern that the Act could be used to censor and silence their likeminded constituents on social media.

In a document posted by Politico that is reportedly circulating among House Republicans, GOP reps fret that the “duty of care provision in KOSA, combined with the Act’s broad scope and complex requirements, could create a chilling effect on the activities of pro-life groups and their ability to provide critical support to women in crisis.”

“The creation of a Kids Online Safety Council and rulemaking powers for the Federal Trade Commission allows Democrats to control what speech is and is not allowed – silencing pro-life speech,” they added.

Meanwhile, on the other side of the aisle, left-leaning activists and organizations are sounding the alarm, as well. In a letter to Frank Pallone, a member of the Energy and Commerce Committee, the Chamber of Progress warned that “the MAGA think tank Heritage Foundation – sponsor of the extreme Project 2025 agenda for Donald Trump’s second term – is promoting the Kids Online Safety Act (KOSA) as a means of further imperiling reproductive rights.”

Noting the Heritage Foundation’s concerns that KOSA could be used to silence pro-life voices, the Chamber of Progress then observes the Heritage Foundation also cited the creation of a “Kids Online Safety Council” within the Department of Commerce would present the right with an opportunity.

“A Republican administration could fill the council with representatives who share pro-life values,” the Heritage Foundation wrote in document being circulated to GOP members of the House.

“Heritage Foundation is effectively telling congressional Republicans that if President Trump is elected, he could use this Council as a means of further combating reproductive freedom,” the Chamber of Progress added in the letter to Pallone. “KOSA supporters have already said that they see the bill as a means to reduce gender arming content online, or in sponsor Sen. Marsha Blackburn’s words ‘protecting minor children from the transgender in this culture.’  Now the sponsors of Project 2025 see KOSA as a way to continue attacking women seeking reproductive care. We urge your committee not to enable their agenda.”

There also remains the fundamental question of whether what KOSA seeks to impose in terms of regulations could survive court scrutiny – which many of its critics say it cannot.

NetChoice, a tech industry trade association which is actively litigating cases targeting a variety of state laws that include provisions similar to KOSA, observed that to “avoid liability under KOSA, social media companies will need to verify each of their users, resulting in every user, regardless of age, being required to provide government issued IDs to exercise their constitutionally protected speech rights.”

“The judges in NetChoice’s Arkansas, Mississippi, and Ohio lawsuits explain that this likely violates the First Amendment because it chills and overly burdens free speech,” NetChoice added.

It remains to be seen whether and how quickly the House can bring its version of KOSA into line with the Senate version. What seems clear is that if it does eventually pass, the controversy surrounding the Act will linger well beyond its effective date.

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