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Whenever a bill aimed at policing online speech is accused of censorship, its supporters often reframe the conversation around subjects like child safety or consumer protection. Such framing helps obscure government attempts to shape or limit lawful speech, yet no matter how artfully labeled such measures happen to be, they inevitably run headlong into the First Amendment.

Consider the headline-grabbing . Re-introduced this year by Sens. Marsha Blackburn (R-Tennessee) and Richard Blumenthal (D-Connecticut) as a measure to protect minors, KOSA’s sponsors have   its regulations as merely providing tools, safeguards, and transparency. But in practice, it would empower the federal government to put enormous pressure on platforms to censor constitutionally protected content. This risk of government censorship led KOSA to stall in the House last year after passing the Senate. 

Child safety arguments have increasingly surfaced in states pursuing platform regulation, but closer inspection reveals that many such laws control how speech flows online, including for adults. Take Mississippi’s 2024 social media law (), which was described as a  measure, that compelled platforms to verify every user’s age. Beneath that rhetoric, however, is the fact that age verification affects everyone, not just children. By forcing every user — adult or minor alike — to show personal identification or risk losing access, this law turned a child-safety gate into a universal speech checkpoint. That’s because identity checks function like a license: if you don’t clear the government’s screening, you can’t speak or listen. 

A judge  HB 1126 last month, rejecting the attorney general’s argument that it only regulated actions, not speech, and finding that age verification gravely burdens how people communicate online. In other words, despite the bill’s intentions or rationales, the First Amendment was very much at stake.

Utah’s 2023 Social Media Regulation Act demanded similar age checks that acted as a broad  mandate that chilled lawful speech. ��֭���� sued, the legislature repealed the statute, and its 2024 replacement — the  — met the same fate when a federal judge blocked it. Finding there was likely “no constitutionally permissible application,” the judge underscored the clear conflict between such regulations and the First Amendment.

Speech regulations often show up with different rationales, not just child safety. In Texas,  was  in 2021 as a way to stop “censorship” by large social media companies. By trying to paint the largest platforms as public utilities and treating content moderation decisions as “service features,” the legislature flipped the script on free expression by recasting a private actor’s editorial judgment as “conduct” the state could police. When the U.S. Court of Appeals for the Fifth Circuit upheld the law, in a decision that was later excoriated by the Supreme Court, the court  this inversion of the First Amendment: “The Platforms are not newspapers. Their censorship is not speech.” 

Florida tried a similar strategy with a consumer-protection gloss.  amended the state’s Deceptive and Unfair Trade Practices Act to include certain content moderation decisions, such as political de-platforming or shadow banning, exposing platforms to enforcement and penalties for their speech. Unlike the Fifth Circuit, the Eleventh Circuit  this law, calling platform curation “unquestionably” expressive and, therefore, protected by the First Amendment. 

In July 2024, the Supreme Court took up the question when considering challenges to these two state laws in . Cutting through the branding, the Court rejected the idea that these laws merely regulated conduct or trade practices. Instead, it said content moderation decisions do have First Amendment protection and that the laws in Texas and Florida did, in fact, regulate speech. 

The Court clarified in no uncertain terms that “a State may not interfere with private actors’ speech to advance its own vision of ideological balance.” And it added that “[o]n the spectrum of dangers to free expression, there are few greater than allowing the government to change the speech of private actors in order to achieve its own conception of speech nirvana.”

California tried the dual framing of both child safety and consumer protection. , the California Age Appropriate Design Code Act, was described as a child-safety bill that just regulated how apps and websites are built and structured, not their content. The bill classified digital product design features, such as autoplaying videos or default public settings, as a “material detriment” to minors as well as an unfair or deceptive act under state consumer-protection statutes. But this too failed and is now  because, the court noted, “the State’s intentions in enacting the CAADCA cannot insulate the Act from the requirements of the First Amendment.”

Multiple nationwide lawsuits now claim social media feeds are , using product-liability law to attack the design of platforms themselves. But by  speech a “product” or forcing it into a product liability claim, it recharacterizes the editorial decisions of lawful content as a product flaw, which attempts to shift the legal analysis from speech protections to consumer protection. State attorneys general, however, cannot erase the First Amendment protections that still apply.

A sound policy approach to online speech looks not at branding, but impact. Even when packaged in terms of child safety, consumer protection, or platform accountability, it is essential to ask whether the rule forces platforms to host, suppress, or reshape lawful content. Regardless of the policy goal or rhetorical framing, if a requirement ultimately pressures platforms to host or suppress lawful speech, expect judges to treat it as a speech regulation. 

Unfortunately, re-branding speech regulations can obfuscate their censorial ends and make them politically attractive. That’s what’s happening with KOSA’s obvious appeal of protecting children, combined with the less obvious censorship threat from targeting “design features,” has made it popular in the Senate.

Giving the government power to censor online speech puts everyone’s liberty at risk. Just as Americans enjoy the right to read, watch, and talk about whatever we want offline, those protections extend to our speech online as well. Protecting free expression now keeps the marketplace of ideas open and guards us from sacrificing everyone’s right to free expression.