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Importing unconstitutional speech laws won’t protect children

While there is much to celebrate about Idaho’s recent success, one policy proposal aimed at protecting children could actually prove costly for citizens’ free speech. The legislature this session is likely to consider numerous online speech regulations that have already been deemed a violation of the First Amendment in other states.


Policymakers have referenced Utah and Arkansas’ recently passed social media legislation. Both states created significant legal liability for certain types of content, mandated internet users hand over their sensitive, private data to confirm their identities, and in Utah’s case, required certain internet services to be shut off every evening. These are not the types of measures we should be considering in Idaho.


Why? Because, while they were well-intentioned, all these bills have invited enormous legal scrutiny. Utah, Arkansas, Ohio and California were all sued, and lost.


In Arkansas, U.S. District Court Judge Timothy Brooks agreed the legislation was an unacceptable affront to free speech, saying that the “loss of First Amendment freedoms, even for minimal periods of time, constitute[s] irreparable injury," and that there was “no compelling evidence” that children would be protected by the legislation. A judge in California took the state to task for claiming their speech regulation bill would somehow improve childrens’ privacy. Judge Beth Labson Freeman said that age verification mandates are “likely to exacerbate the problem by inducing…children to divulge additional personal information.” Every time these bills have been challenged, they have failed to withstand even basic constitutional scrutiny. 


S. 1222 has already been introduced in the Idaho Senate. It would place a government-mandated speech filter on every device, like a smartphone, activated in the state. The goal is to block young people from consuming inappropriate content, but the technology would end up closing off lots of protected speech, too, and affect the way adults can use the internet. 


Censorship regimes like this were attempted before at the federal level in 1996 and struck down by the Supreme Court as unconstitutional. There is no reason to believe that this time would be any different. Last year, conservative states like Tennessee considered similar proposals and rejected them.


Ensuring our children are safe online is of critical importance. No sane person denies this. But an important question for every American to ask themselves is: have I made my child safer by weakening their constitutional rights and empowering the government to be my co-parent? The answer is clearly not. We can easily institute campaigns to raise parent awareness of online services currently available to protect their children.


Tech companies have introduced various ideas to help with the effort as well. But it should be noted that filters, blockers, and screen time monitors already exist and don’t come with draconian government mandates. We can also follow other states like Florida in implementing digital literacy and safety into school curricula.


Improving outcomes for young Idahoans and keeping them safe online requires work–work that is worth doing. But it is important that the efforts we undertake will lead us to our desired outcomes and not just result in press releases and empty sentiment. Passing a bill that will inevitably be struck down as violating the First Amendment won’t make a single child safer. Instead, we need to do the hard work, together, of finding policy solutions that place the family, not the government, at the center of a child’s upbringing, and give them safety tools they can use free of government coercion or censorship.   

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