Sen. Marsha Blackburn (R-TN) is attempting to bind the Kids Online Safety Act to renewed federal efforts to block some state laws governing artificial intelligence.
Bigger isn’t always better. But it is when you’re trying to find a way forward for unpopular legislation. KOSA has been introduced in the past three Congresses, and so far it has proven too unpopular to pass alone. By throwing in KOSA with federal AI preemption, Blackburn may be trying to garner additional votes from legislators who might never vote for the bill on its own merits.
Logrolling — the practice of trading votes on legislation — is not novel. In fact, it has occurred since the first Congress. But this instance of logrolling threatens to flatten the First Amendment itself.
The defects of KOSA remain unremedied — indeed, they are irremediable. The central provision of the bill — the “duty of care” — defines loose categories of speech, allegedly dangerous to children, that online platforms must suppress. The interpretation of this duty of care would depend on the ideological predilections of the bureaucrat enforcing it and would thus be destined to shift from administration to administration. In any case, it is likely to prove a tool for digital censorship.
For example, the Left says withholding the full panoply of resources from children who believe themselves to be transgender constitutes abuse. Yet one right-wing organization advocated KOSA on the basis of its supposed virtue of keeping “trans content away from children.” KOSA’s application would vary with the preferences of the party staffing each successive administration.
KOSA’s Republican supporters should consider how Democrats could make use of the bill when they inevitably regain the White House. Consider the Biden administration’s myriad censorial efforts. Then consider the efforts likely to be undertaken by a Gov. Gavin Newsom (D-CA) or Rep. Alexandria Ocasio-Cortez (D-NY) administration in 2029 or 2033. What’s past is, all too often, prologue. A Republican Congress enacting KOSA would hand to whatever Democrat next occupies the Oval Office a fully loaded weapon of censorship, with a round chambered, the safety off.
Blackburn herself has not obscured the fact, saying the bill amounts to an attempt to prevent children from “being indoctrinated.”
House Speaker Mike Johnson (R-LA) has proven more prudent, more mindful of the dangers embedded in statutes that authorize bureaucrats to meddle with free speech. He has thwarted previous attempts to advance the bill, questioning “whether [KOSA] might lead to further censorship by the government of valid … conservative voices.”
Johnson seems to know what ought to be obvious to all: Any legislation that facilitates one party’s efforts to suppress speech it conceives of as “indoctrination” will, by an almost Newtonian law, incite the other party to retaliate just as soon as it takes hold of the necessary statutory levers.
IRAN’S INTERNET IS BACK, UNTIL IT ISN’T
The longing for perfect safety in the digital world has produced in some advocates and lawmakers narrow vision, which, although supremely well-intentioned, cannot see in their own proposals lurking threats to free speech and the First Amendment. Having decided that something, anything, must be done to alter the relationship of children and technology, the safety-ist faction ignores the lessons of history, and particularly the history of the expansion of the federal government during the last century: The urge to do something, anything — without ensuring that the remedy enacted is well-crafted — quite often produces new federal powers and new bureaucracies, dangerous to American liberty.
Today, Americans’ lives are increasingly lived out online. The First Amendment and other constitutional principles that protect liberty in the physical world ought not to be brushed aside in the digital one. As a matter of law and a matter of right, the same restraints on state action obtain in both domains, which should give pause to KOSA’s advocates, because the bill cannot satisfy the demands of the First Amendment, so cherished by the American people.
David B. McGarry is the research director of the Taxpayers Protection Alliance.