It’s Time For Lawmakers to Listen to Courts: Your Law Regulating Online Speech Will Harm Internet Users’ Free Speech Rights

Despite a long history of courts ruling that government efforts to regulate speech online harm all internet users and interfere with their First Amendment rights, state and federal lawmakers continue to pass laws that do just that. Three separate rulings issued in the past week show that the results of these latest efforts are as predictable as they are avoidable: courts will strike down these laws.

The question is, why aren’t lawmakers listening? Instead of focusing on passing consumer privacy legislation that attacks the harmful business practices of the most dominant online services, lawmakers are seeking to censor the internet or block young people from it. Instead of passing laws that increase competition and help usher in a new era of online services and interoperability, lawmakers are trying to force social media platforms to host specific viewpoints. 

Recent decisions by the Supreme Court and two federal district courts underscore how these laws, in addition to being unconstitutional, are also bad policy. Whatever the good intentions of lawmakers, laws that censor the internet directly harm people’s ability to speak online, access others’ speech, remain anonymous, and preserve their privacy.

The consistent rulings by these courts should send a clear message to lawmakers considering internet legislation: it’s time to focus on advancing legislation that solves some of the most pressing privacy and competition problems online without censoring users’ speech. Those proposals have the benefit of both being constitutional and addressing many of the harms people—both adults and young people—experience online. Let’s take a look at each of these cases.

Court Puts Mississippi Law on Hold, Highlights KOSA’s Unconstitutionality

A federal court on Monday blocked Mississippi from enforcing its children’s online safety law (House Bill 1126), ruling that it violates the First Amendment rights of adults and young people. The law requires social media services to verify the ages of all users, to obtain parental consent for any minor users, and to block minor users from being exposed to “harmful” material.

EFF filed a friend-of-the-court brief in the case that highlighted the many ways in which the law burdened adults’ ability to access lawful speech online, chilled anonymity online, and threatened their data privacy.

The district court agreed with EFF, ruling that “the Act requires all users (both adults and minors) to verify their ages before creating an account to access a broad range of protected speech on a broad range of covered websites. This burdens adults’ First Amendment rights.”

The court’s ruling also demonstrates the peril Congress faces should it advance the Kids Online Safety Act. Both chambers have drafted slightly different versions of KOSA, but the core provision of both bills would harm internet users—especially young people—by censoring a large swath of protected speech online.

EFF has previously explained in detail why KOSA will block everyone’s ability to access information online in ways that violate the First Amendment. The Mississippi court’s ruling earlier this week confirms that KOSA is unconstitutional, as the law contains similar problematic provisions.

Both Mississippi HB 1126 and KOSA include a provision that imposes liability on social media services that fail to “prevent and mitigate” exposing young people to several categories of content that the measures deem to be harmful. And both bills include a carveout that says a service will not face liability if