A Defining Battle for KOSMA
The definition of social media will be a key battleground for legal fights over KOSMA.
In the courtroom, Big Tech can “win so much, you may even get tired of winning.” How do we ensure that the courts don’t block the Kids Off Social Media Act (KOSMA)? A key battleground, one where Big Tech has scored five wins, is the definition of social media.1
If we do not learn from those losses, history will likely repeat itself with KOSMA.
1. The Core Technical Challenge
In the early days of the Internet, Congress made multiple attempts to protect kids online—namely the Communications Decency Act of 1996 and the Child Online Protection Act of 1998—only to see the courts overturn those laws. How do we ensure that history does not repeat itself with attempts to protect kids from social media?
A. “Ideas are Easy. Execution is Everything.”
John Doerr, a well-known venture capitalist and an early investor in Google, once said, “Ideas are easy. Execution is everything.”
Legislation often starts with a belief that social media is harmful for kids. This belief then leads to an idea. Perhaps the idea is that we should require age verification. Perhaps the idea is that—in the case of KOSMA—social media sites should at least ban users when they know that a user is under 13.
And too often, conflicts in the policy world narrowly focus on those grand debates of ideas. Is age verification constitutional? Does banning kids from social media violate the First Amendment? Many policy analysts will jump straight into those grand debates—which rarely touch on finer details like the definition of social media.2
But what if you are more focused on execution? In that case, you would instead jump straight into the court decisions that have blocked these laws to protect kids online.
Why does the definition of social media matter? When we get down to brass tacks, courts look at not just “what” the law does, but also “who” the law applies to. The definition of social media matters because it determines “who” the law applies to.3
And in five cases, before we even get into “what” the law does, the “who”—the definition of social media—is enough to render the law unconstitutional.4
B. I Know It When I See It, but I Can’t Intelligibly Define It
Justice Potter Stewart famously said this about hardcore pornography: “I know it when I see it.” But does that mean he could easily define hardcore pornography?
I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description, and perhaps I could never succeed in intelligibly doing so.
We often know what a social media site is when we see it, but that doesn’t mean it’s easy to define social media. How do we create a definition that “intelligibly” defines the kinds of sites “to be embraced within that shorthand description”? Five states—Arkansas, Ohio, Mississippi, Texas, and Utah—have tried and failed.5
At its core, defining social media is a vexing technical challenge.6 There are over one billion websites on the Internet (and Google and Apple each have about two million apps in their app stores). A definition has to accurately classify each one of these billion websites as “social media” or “not social media.”
The part that often goes underlooked here is that the definition must exclude sites that are “not social media.” And the volume and variety of such sites can be mind-boggling: Netflix, the comments section of the New York Times, Amazon, (arguably) LinkedIn, Yelp, Wikipedia, Google’s search engine, Substack, and so on.
It’s already hard enough as it is, but on top of that, the First Amendment will impose some limitations on how we can write that definition.
2. Where Did Things Go Wrong?
When crafting a definition of social media, there are many choices we could make, many paths we could take. But many paths lead to dead ends—and to losses in the courts. And while those five losses can provide insights as to which paths we should not take, they don’t always provide insights as to which paths we can take.
A. Taking Exception to Exceptions
In analyzing KOSMA’s definition of social media [Sec. 102(6)], we can split it into two parts: the base definition [Sec. 102(6)(A)] and the 12 exceptions [Sec. 102(6)(B)].
If you’re crafting a definition, perhaps your first draft, like KOSMA’s base definition, will focus on sites that are “a community forum for user-generated content.”
That first draft, however, will tend to include many sites that are “not social media.” For example, Yelp reviews do count as user-generated content.7
If your definition includes Yelp, how do you fix it? Your first instinct may be to add an exception. Arkansas walked down that path, but one exception led to another and eventually to a definition with 13 exceptions. It was an easy win for NetChoice—a trade association for Big Tech that filed all five of these lawsuits.
That does not bode well for KOSMA, whose definition has 12 exceptions. Laws like that tend to be content-based, and content-based laws almost always lose in court.8
What makes a law content-based? A law that favors liberal speech and disfavors conservative speech would be content-based, but more subtle distinctions can also be content-based. In Arkansas Writers' Project v. Ragland (1987), a law that “taxes general interest magazines, but exempts newspapers and religious, professional, trade, and sports journals” was content-based. In Reed v. Town of Gilbert (2015), a law that treated “temporary directional signs” and “political signs” differently was content-based.
When you are familiar with those court decisions from the offline world, these court decisions in the online world will hardly surprise you. In the four court cases after Arkansas’s, the judge cited Reed when analyzing the law’s definition of social media.
It’s not just the number of exceptions, either. Some exceptions will send your definition straight off the cliff. To exclude sites like Yelp, Ohio’s law had an exception for product review websites, which led to another easy win for NetChoice. The judge said this exception was “easy to categorize” as content-based: “For example, a product review website is excepted, but a book or film review website, is presumably not.”
That also does not bode well for KOSMA, which has this exception:
(vii) Business, product, or travel information including user reviews or rankings of such businesses, products, or other travel information.
This exception could also get KOSMA into trouble:
(vi) Content that consists primarily of news, sports, sports coverage, entertainment, or other information or content that is not user-generated but is preselected by the platform and for which any chat, comment, or interactive functionality is incidental, directly related to, or dependent on the provision of the content provided by the platform.
This exception is almost identical to exceptions in Mississippi’s and Texas’s laws. Again, NetChoice won in both states, convincing a judge that the exception was content-based. The judge in Texas, for example, highlighted how this exception “singles out specific subject matter for differential treatment.”
And while no court decision directly addresses an exception like this, by now, we can safely infer that this exception in KOSMA would probably be content-based:
(iii) Crowd-sourced reference guides such as encyclopedias and dictionaries.
B. “Not Social Media”
How do we get back on the right path? All these content-based exceptions have something in common: they are all for sites that have user-generated content—be it comments, product reviews, or wikis—but that are not social media sites.
The real problem is not content-based exceptions. The real problem goes back to our core technical challenge: classifying over one billion sites as “social media” or “not social media.” The base definition inaccurately classifies many sites with user-generated content as “social media” when they are not social media sites.9
That’s why we can’t just solve the problem by removing those exceptions. To return to our example of Yelp, if we remove all 12 exceptions from KOSMA’s definition of social media, then the definition says that Yelp is a social media site.
If Yelp is a social media site, that just creates a different First Amendment problem: overinclusivity. Consider the path Utah took. They saw what was happening in other states with their exceptions, and they clamped down on exceptions in their law. But NetChoice still won on different grounds: overinclusivity.10 The judge, in particular, criticized the definition because it included Dreamwidth (a blogging service).
The existence of user-generated content is necessary to define social media, but it is not sufficient. The real problem is that KOSMA’s base definition is incomplete. There’s a missing piece (or pieces), and we need to figure out what it is.
C. Void for Vagueness
What happens if a company reads the definition, and it has no idea whether the definition applies to its site or not? In that case, we can run into another constitutional problem: the law is void for vagueness.
What sorts of wrong turns can we make here? Phrases like “primary purpose” or “primarily functions” can give the courts fits; “primary purpose” was too vague in Arkansas, and “primarily functions” was too vague in Mississippi.
While this question may invoke images of lawyers debating arcane and complex language details, a more accurate image would invoke Socrates. Perhaps a think-tank scholar approaches a modern-day Socrates, confident in his ability to discern the “primary purpose” of a site. But as Socrates asks one probing question after another, the man eventually walks away, defeated and uncertain of his abilities.
In Arkansas, it only took one probing question: what is the “primary purpose” of Snapchat? The state’s own witnesses could not agree on the answer—and on whether their law applied to Snapchat. Needless to say, that law was void for vagueness.
The base definition of KOSMA, for its part, does use the phrase “primary function”:11
(iv) as its primary function provides a community forum for user-generated content…
As for the phrase “user-generated content,” here is another probing question: what is the difference between third-party content and user-generated content?
Take Netflix, for example. Netflix did not make most of the movies on its platform; those movies are almost always third-party content. But would these movies count as user-generated content? Colloquially, the answer would probably be no.
Legally, though, how do we draw a line between third-party content that is user-generated and third-party content that is not user-generated? If a site relies on third-party content, how do they know which side of the line they’re on?
While vagueness is a Fifth Amendment concern, the bar is raised when the First Amendment gets involved. In FCC v. Fox Television Stations (2012), the Supreme Court said this requirement is more rigorous when speech is involved.12 This is another reason why you should not be overconfident in your ability to clear that bar.
3. “Special Characteristics” of the Missing Pieces
In sports, refs make mistakes, but when you’re 0-5, it’s probably not the refs’ fault. Have we created a definition that is not overinclusive, content-based, and/or vague? We’re 0-5. Instead of complaining about the refs(/judges)—which we can’t control—let’s alter the definition—which we do control. Let’s build a definition so accurate, so obviously content-neutral, so crystal-clear that it’s an easy call for any judge.
We’ve talked a lot about court losses, but let’s talk about a major court win: the divest-or-ban law for TikTok. TikTok argued that this law was content-based, but the Supreme Court rejected that claim, reaffirming a key principle of Turner Broadcasting System v. FCC (1994): a law is content-neutral “when the differential treatment is ‘justified by some special characteristic of’ the particular medium being regulated.”
We know that social media is harmful for kids, but to craft a definition, we need to know why social media is harmful for kids. What are the “special characteristics” of social media, and why do these characteristics make it harmful for kids? Specifics are needed; we can’t make a hand-wavy claim that it’s the social nature of social media.13
This could be one such characteristic: content moderation at scale is hard. Whenever conservatives complained about Big Tech censorship, a certain class of pundits would retort that “content moderation at scale is hard.” As an engineer, I would concede there is some truth to that, but the principle works both ways.
If content moderation at scale is hard, then is social media really safe for kids? Should we be skeptical of the claim that better content moderation will magically solve our problems? It’s not just the engineer saying that; Jonathan Haidt raised a similar point:
Even if social media companies could reduce sextortion, CSAM, deepfake porn, bullying, self-harm content, drug deals, and social-media induced suicide by 80%, I think the main take away from those Senate hearings is: Social media is just not appropriate for children.
How do we execute this idea that content moderation at scale is hard? Add a threshold for daily active users to our definition: one million daily active users who create content.14 (The exact number is negotiable; I had to pick some number here.15)
We can also resolve both of our vagueness concerns. There’s no need to discern the “primary function” of a site with that many active users; just delete that part. And even if movies count as user-generated content, Netflix comes nowhere close to having one million (or even ten thousand) daily active users who create content.
Our odds of winning against NetChoice just got a whole lot better.16
Nonetheless, to return to our core technical challenge—classifying over one billion sites (and millions of apps) as “social media” or “not social media”—the definition could still be overinclusive, even with this new piece.17 There could still be other ways where it classifies a site as “social media” when it is not a social media site.18
But each time that happens, the same pattern applies to find another piece. We find a special characteristic of social media, explain why that characteristic makes social media harmful for kids, and incorporate that characteristic into the definition.
With each additional piece, the odds of winning against NetChoice increases.
See NetChoice v. Griffin (W.D. Ark. Aug. 31, 2023), NetChoice v. Yost (S.D. Ohio Feb. 12, 2024), NetChoice v. Fitch (S.D. Miss. July 1, 2024), CCIA & NetChoice v. Paxton (W.D. Tex. Aug. 30, 2024), and NetChoice v. Reyes (D. Utah Sept. 10, 2024). I raised the alarm in City Journal after the first two court losses.
One noteworthy exception was episode 23 of the Federalist Society’s Tech Roundup podcast. At about 21:03, Baily Sanchez discusses how age verification laws for social media were enjoined not strictly for age verification, but also for other issues like the definition.
In terms of “who” the law applies to, industry-specific laws will receive heightened scrutiny—either intermediate or strict scrutiny—when the industry is a forum for expression, such as social media or cable. See Turner Broadcasting System v. FCC, 512 U.S. 622, 640-641 (1994).
There’s a little nuance here. For example, a KOSMA-style law would have better odds of surviving strict scrutiny, compared to an age verification law. That being said, I don’t like the odds for any law that is subject to the “death knell” of strict scrutiny, and a content-based definition of social media would subject either law to strict scrutiny.
Litigation is currently ongoing in two more states: Florida and Tennessee; it’s not yet known how their definitions will fare in the courts.
Ironically, defining hardcore pornography has been much easier. It is often defined as content that is obscene for minors, where obscene is defined using the Miller test. We can debate exactly how intelligible the Miller test is when you try to apply it in practice, but since it’s a court-invented test, we know it’s constitutional if nothing else.
To briefly cover the other parts of KOSMA’s base definition, Yelp is directed to consumers, it collects personal data since it collects an email address when users create an account, and it primarily relies on advertising revenue.
Content-based laws are subject to strict scrutiny, which in practice tends to be “strict in theory, fatal in fact.” Content-neutral laws are only subject to intermediate scrutiny.
As we saw with Yelp, the other pieces of the definition often do not help, either. Collecting an email address when a user registers for an account meets part (ii) of the definition. And many sites—not just social media—rely on ad revenue and meet part (iii) of the definition.
The judge also ruled that their definition was content-based, as it “distinguishes between ‘social’ speech and other forms of speech.” That being said, “interacts socially” was a key phrase in Utah’s definition; KOSMA does not have such a phrase in its definition.
As a counterexample, though, a judge in Texas did rule that “primarily functions” was not too vague, so using such phrases does not guarantee a loss. Nonetheless, it certainly is a risky path to take, and overconfidence can be a vice.
To get an idea of just how rigorous this requirement can be, there is a First Amendment case where the word “promote” was too vague: Bagget v. Bullitt (1964). That judge in Texas cited this case when analyzing the verb “promote” in Texas’s law (though this was for a separate part of the law, not for its definition of social media).
In Mississippi, Texas, and Utah, the judge ruled that a law is content-based if it treats “social” speech differently than other forms of speech. Utah had the right idea to argue that it’s contemplating the “structure, not subject matter” of social media, but its execution was lacking in terms of translating that idea to legislative text.
While not required, a legislative finding that identifies the “special characteristic” of social media—in this case, that content moderation at scale is hard—would also be useful.
Lest anyone allege that the threshold was set at 1,000,000 for some nefarious content-based reason, here’s the actual methodology: I iterated through the powers of 10 (1, 10, 100, 1,000, etc.) until I hit a number that seemed large enough: 1,000,000.
Although Florida’s anti-censorship law was deemed unconstitutional for other reasons, the Eleventh Circuit rejected NetChoice’s claim it was content-based because it only applied to the largest social media platforms, as the reason why “might be based on some[] ‘special characteristic’ of large platforms—for instance, their market power.”
The threshold for daily active users was borrowed from my model definition for social media, which has additional pieces to it as well.
Underinclusivity—classifying a site as “not social media” when it is a social media site—is less of a legal concern. In TikTok v. Garland (2025), the Supreme Court reaffirmed two key principles from its earlier precedents: that “the First Amendment imposes no freestanding underinclusiveness limitation” and that Congress “need not address all aspects of a problem in one fell swoop.”