Quick Guide: Content Moderation vs. Free Expression

Republicans and Democrats agree on the importance of protecting children and teens against online predators.  In this episode of State AG Pulse, Jerry Kilgore expands on his recent op-ed in the Washington Examiner in which he argued that encouraging parental oversight, together with federal mandates for age standards, would be more effective in protecting children’s safety online than a patchwork of state laws. He predicts wide reverberations from the Supreme Court’s expected ruling in the NetChoice cases this summer including on the campaign trail, and debates with Stephen Cobb and Emily Yu the roles of state AGs, legislators, and the Supreme Court in the fight between those who support content moderation and those who advocate for freedom of expression.

(00:20): Jerry Kilgore introduces today’s speakers: himself, Emily Yu, and Stephen Cobb; and the topic of the podcast which is online safety and online issues affecting social media.

(01:15): Stephen reiterates that this is an area of going concern at the local, the state, and the federal level.

(02:00): Emily endorses Jerry’s point from his op-ed that having the federal government set national age appropriate standards is a better approach than a patchwork of state laws.

(02:55): Stephen makes the point that there’s precedent for both. Coextensive enforcement authority happens in antitrust, environmental, and data breaches. Patchwork regulatory schemes prevail in the data privacy arena.

(03:55): Jerry bemoans the different standards and reporting requirements in data privacy across the country and predicts that there is a risk that social media companies will be left confused as far as laws designed to protect kids online.

(05:21): Stephen queries how one standard can work given the wide array of social media companies and asks whether app store “age-gating” is a way to solve this regulatory puzzle.

(06:14): Jerry’s view is that age verification and buy-in from parents and parental involvement are key.

(07:17): Emily agrees that age-gating to prevent minors from downloading social media apps is the most workable way of protecting children on online platforms.

(08:00): Jerry expresses his hope that the House considers some of these options, rather than rushing to pass a Senate bill. Stephen adds that states like Texas and Florida are already passing legislation to try and regulate what can and can’t happen on social media platforms leading to constitutional challenges all the way up to the Supreme Court.

(09:33): Emily explains the details of the arguments from FL and TX heard by the Supreme Court.

(10:36): In addition to the constitutional issued addressed in NetChoice, Stephen outlines potential practical outcomes in terms of federal legislation and responses by individual states.

(11:46): Emily agrees that TX and FL will act quickly once the Supreme Court rules, and are likely to set the stage for other Republican states, and catalyze a reaction from the left.

(12:43): Jerry concurs, and postulates that regulation of social media companies could also feature in the upcoming elections, both at the state and presidential level.

(14:36): Stephen expresses his view that SCOTUS will not be overly proscriptive in its ruling and that there could well be further deliberation and legal challenges.

(15:38): Jerry empathizes with the position the social media companies find themselves in, caught in the middle between free speech advocates and proponents of greater moderation.

(16:01): Stephen asks whether social media companies taking their own actions to safeguard children and minors on their platforms would preempt legislative action. Jerry’s view is that the social media companies are working hard to try to figure this out, but that parental oversight of kids’ online activity is needed, since it’s difficult for social media companies to verify users’ age. He proposes that age-gating at the app store level is the best form of control. He believes state AGs working in partnership with the federal government, the FTC, and other agencies will be more effective in protecting minors than legislation alone.

(20:02): Emily reiterates that AGs have already started bringing enforcement actions, for example against TikTok, alleging addiction and mental and physical harms.

(21:50): Jerry brings up TikTok’s foreign ownership which has contributed to an all-out assault on TikTok and impacted other social media platforms.

(23:46) Emily postulates that, in addition to foreign ownership, it is TikTok’s failure to implement proactive measures to limit teens’ access and empower parents as other social media platforms have done that has also garnered attention from AGs.

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