Proposed California law could force social media companies to censor LGBTQ+ content

This blog originally appeared at LGBTQ Nation.

A new California social media law could harm LGBTQ+ youth, according to an internet civil liberties group. The group, the Electronic Frontier Foundation (EFF), has advised California Attorney General Rob Bonta (D) not to approve the proposed law for an upcoming voter referendum.

Two advocates have called it “a misguided and unconstitutional proposal.”

The law, entitled “The Common Sense Initiative to Protect California Kids Online,” seeks to protect minors from specific online “injuries” by allowing people to sue social media companies for $5,000 per violation, up to $1 million per child, according to The Sacramento Bee.

“It would be up to the courts to decide the merits of a parent’s claim,” explains James Steyer, the CEO and founder of Common Sense Media, a nonprofit that provides information on the suitability of tech platforms for children. “Tech companies have avoided any accountability for their profit-driven actions and it is time to change that, either through the Legislature or through the ballot.”

But the proposal currently doesn’t specifically list which “injuries” are covered or how social media companies could avoid inflicting them. That non-specificity concerns the EFF because they worry that the law could be used to censor LGBTQ+ content as “harmful.”

In a letter to Bonta, the EFF policy analyst Joe Mullin and senior staff attorney Aaron Mackey wrote that the proposed law violates social media companies’ constitutionally protected free speech rights and would result in the censoring of LGBTQ+ content.

“For example, elected officials in both California and other states have said that access to LGBTQ+ content harms children,” Mullin and Mackey wrote. “Lawsuits would likely push online services to restrict access to medical, health, and sexual information that many LGBTQ+ children need.”

Mullin and Mackey’s concern isn’t unprecedented. In fact, groups like the American Civil Liberties Union ACLU and the parents of transgender youth worry that a similar proposed federal law, the Kids Online Safety Act (KOSA), could compel social media companies to censor LGBTQ+ content to avoid possible lawsuits.

Specifically, the ACLU and parents of trans youth worry that state attorneys general who consider queerness a social fad or a form of mental illness that causes kids to harm themselves, participate in risky sexual behavior, and increase their risks for depression, suicide, or drug use would use KOSA to sue social media platforms companies.

“[The proposed state law] is a misguided and unconstitutional proposal that will restrict all Californians’ access to online information,” Mullin and Mackey added.