Should the Government Restrict ‘Harmful’ Speech Online?

  Rachel Chiu; Foundation for Economic Education  "There’s no doubt that certain kinds of online conduct are reprehensible. But that doesn’t mean we should disregard the First Amendment." R.C.

Ultimately, the fixation on harm does little to justify speech limitations. Legislation that reduces legal speech to promote a larger, social good is still a vehicle for the government to become, as Judge Easterbrook wrote, “great censors.” 

"The First Amendment prohibits the federal government from suppressing speech, including speech it deems “harmful,” yet lawmakers keep trying to regulate online discourse.

"Over the summer, the Senate passed the Kids Online Safety Act (KOSA), a bill to allegedly protect children from the adverse effects of social media. Senate Majority Leader Chuck Schumer took procedural steps to end the debate and quickly advance the bill to a floor vote. According to Schumer, the situation was urgent. In his remarks, he focused on the stories of children who were targets of bullying and predatory conduct on social media. To address these safety issues, the proposed legislation would place liability on online platforms, requiring them to take “reasonable” measures to prevent and mitigate harm.

"It’s now up to the House to push the bill forward to the President’s desk. After initial concerns about censorship, the House Committee on Energy and Commerce advanced the bill in September, paving the way for a final floor vote.

"KOSA highlights an ongoing tension between free speech and current efforts to make social media “safer.” In its persistent attempts to remedy social harm, the government shrinks what is permissible to say online and assumes a role that the First Amendment specifically guards against.

"At its core, the First Amendment is designed to protect freedom of speech from government intrusion. Congress is not responsible for determining what speech is permissible or what information the public has the right to access. Courts have long held that all speech is protected unless it falls within certain categories. Prohibitions against harmful speech—where “harmful” is determined solely by lawmakers—are not consistent with the First Amendment.

"But bills like KOSA add layers of complexity. First, the government is not simply punishing ideological opponents or those with unfavorable viewpoints, which would clearly violate the First Amendment. When viewed in its best light, KOSA is equally about protecting children and their health. New York had similar public health and safety justifications for its controversial hate speech law, which was blocked by a district court and is pending appeal. Under this argument, which is often cited to rationalize speech limitations, the dangers to society are so great that the government should take action to protect vulnerable groups from harm. However, the courts have generally ruled that this is not sufficient justification to limit protected speech." . . .