This week, TechFreedom was joined by leading Internet law academics in two coalition letters to explain why key provisions of the Journalism Competition and Preservation Act (JCPA) and the Kids Online Safety Act (KOSA) violate the First Amendment—and will make the Internet less safe for children and adults. As currently written, JCPA will help the very opposite of serious journalism, and KOSA will harm minors rather than help them.
“Poisoning the information ecosystem is no way to protect journalism,” said Berin Szóka, President of TechFreedom. “Unfortunately, JCPA does exactly that; absent further amendment it will surely be weaponized against content moderation by the worst dumpers of digital toxic waste. Despite some minor improvements, JCPA still allows extremist, pseudo-journalistic publications to demand platforms pay for the privilege of deciding not to carry their content at all. Even worse, JCPA would lead to vexatious “retaliation” lawsuits from noxious contentmongers upset that platforms won’t monetize their content, or simply because their content was moderated.”
“Instead of protecting kids, KOSA actively harms them—a pretty terrible tradeoff for violating the First Amendment, which this bill also does,” said Ari Cohn, TechFreedom’s Free Speech Counsel. “To comply with KOSA, nearly every website and online service would have to verify all users’ ages, unconstitutionally infringing on the right to read and communicate anonymously,” Cohn continued. “It makes no sense to hold platforms legally responsible for preventing vague and unknowable harms to kids from constitutionally protected speech—especially when courts have refused to do so in every other media context. All KOSA does is ensure that kids will have less access to legitimate information: platforms will be forced to simply cut access to anything that could conceivably cause harm, and state attorneys general will seize on the duty of care to purge the Internet of any content they don’t like, such as gender identity and sexual orientation.”
“The Senate Judiciary Committee could have addressed First Amendment concerns about both bills if it hadn’t rushed them through without standard legislative process,” Szóka concluded. “The full committee held hearings on neither bill. The Antitrust Subcommittee held one hearing on JCPA but failed to address First Amendment issues. Instead, JCPA’s sponsors rewrote the bill repeatedly to get it through markup—and there was never any opportunity to examine whether those amendments were adequate. KOSA received less than 20 minutes of discussion—all of it at markup. Both bills should go through the normal hearing process in the next Congress.”
Find this release on our website and share it on Twitter and Mastodon. We can be reached for comment at firstname.lastname@example.org. See our related work:
- Content Moderation Sacrificed in Left-Right Deals on Tech Reform, Lawfare, (Dec. 7, 2022)
- Coalition letter we signed onto in opposition to KOSA, (Nov. 28, 2022)
- Our comments to the FTC on rules for commercial surveillance and data security, (Nov 21, 2022)
- Our comments in response to the FTC’s October 2022 event entitled “Protecting Kids from Stealth Advertising in Digital Media,” (Nov. 18, 2022)
- Our coalition letter on the September 15, 2022 markup of the JCPA, (Sep. 15. 20220)
- Our coalition letter on the September 8, 2022 markup of JCPA, (Sep. 8, 2022)
- TechFreedom Event: Will Kids’ Privacy Crackdown Break the Internet? The COPPA Rule, (Jan 13, 2020)
About TechFreedom: TechFreedom is a nonprofit, nonpartisan technology policy think tank. We work to chart a path forward for policymakers towards a bright future where technology enhances freedom, and freedom enhances technology.