KOSA is a bad bill. Rearranging the words won’t change that.
Despite reporting that the Kids Online Safety Act (KOSA) would not pass this year due to continued censorship concerns over its constitutionality and a lack of consensus among lawmakers, the bill’s authors have released yet another new version, in a desperate attempt to force the bill into must-pass end of year legislation.
The new text does not change the core problem with the bill: it allows the FTC to police speech. The bill’s authors seem to think if they say the word reasonable enough times in the text, it will force the incoming FTC to be reasonable in applying the bill to speech online. It will not.
Fight for the Future has been clear from the beginning: KOSA’s duty of care is the problem. The duty of care has always opened the door to the FTC becoming an online speech regulatory body, as the provision gives them the authority to pressure platforms to suppress content based on subjective definitions of psychological and mental harms. Because this duty of care is fundamentally tied to speech, it will always have a constitutional problem and will always have the problem of enforcers being able to selectively target content for partisan reasons. The edits do not fix that problem, because simply stating that the FTC cannot violate the First Amendment does not prevent the likely harm – that the FTC would use the law to threaten and raise the costs of platforms that allow speech their administration doesn’t agree with.
KOSA’s bipartisan support has been held together by the belief that allowing the FTC to police speech would not impact the speech that members of Congress care about. But the intentions of the incoming Trump administration have been clear on this, and the Trump FTC will use KOSA and any other tool at their disposal to go after LGBTQ+ and especially trans speech.
The Heritage Foundation, who has strong ties to the Trump administration, has already stated its intentions to use KOSA against LGBTQ+ content. Heritage wrote a blog post on “How Big Tech Turns Kids Trans” in support of KOSA. Heritage doubled down on this specific use of KOSA, stating on X that “Keeping trans content away from children is protecting kids” in response to a tweet that raised the possibility of KOSA being used to police LGBTQ+ content.
Andrew Ferguson, a current FTC commissioner running for chair of the FTC, has also been clear in his intentions. In a leaked 1-pager Ferguson states that, as chair, he will:
“Fight back against the trans agenda. Investigate the doctors, therapists, hospitals, and others who deceptively pushed gender confusion, puberty blockers, hormone replacement, and sex-change surgeries on children and adults while failing to disclose strong evidence that such interventions are not helpful and carry enormous risks.”
The new support of KOSA by Elon Musk furthers these concerns. Musk is heavily involved in the incoming administration, and his views on the trans community are clear.
We urge so-called free speech advocates to think this through. Once the precedent is set, and agencies are deputized to police speech for partisan ends, we can expect any administration, of any party, to mobilize their power to take advantage, in order to suppress speech they do not like. KOSA is a threat to all manner of political speech and should be treated as such.
While this last ditch effort to push KOSA through this year is being done in the name of young people, they themselves have been adamant, restricting speech online does not help them. Young people want common-sense solutions, antitrust policy to fight back against corporations that are extracting everything they can from us, and comprehensive digital privacy to protect against the data collection that invades every aspect of their lives. These edits represent nothing more than rearranging deck chairs on the Titanic while we all sink into fascism. Now more than ever, those that care about speech should reject this bill.