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The Dangers of "Best Interest of the Child" Provisions

Updated: Dec 6, 2023


When it comes to online safety legislation and especially online child safety bills, the phrase "best interest of the child" frequently takes center stage. Often posited as an attempt to shield youth from harmful content by legally requiring platforms to prioritize online minor safety, a closer examination of “best interest” provisions reveals significant potential danger for LGBTQ+ and other vulnerable youth.


This danger – which includes overbroad content moderation and legislative weaponization by anti-LGBTQ+ lawmakers – could create a hostile digital landscape for those who need support the most. There are an estimated 5.73 million LGBTQ+ teenagers in the United States, a larger group than the entire population of Minnesota. We know that for many of these youth, access to online community and resources is key to staying happy, healthy, and alive. “Best interest” provisions fail to adequately preserve this access, and contrary to the name, fail to protect youth well-being in the process.

LGBTQ+ youth, who already face higher rates of mental health challenges, rely on online spaces to find understanding and connection. Forty-six percent of LGBTQ+ youth between the ages of 13-17 have considered suicide in the past year, and the removal or restriction of LGBTQ+ content could exacerbate the isolation and mental health struggles that many in this community already face. The online world often serves as a haven for those grappling with their identity, and any hindrance to accessing supportive content may have profound consequences.


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One central issue of “best interest” provisions presents in their ambiguous language, which threatens the availability of content relied upon by LGBTQ+ and other vulnerable youth. In 2022, California enacted the California Age-Appropriate Design Code Act (CAADCA), which in part requires that online businesses document and mitigate the risk of children being exposed to “potentially harmful” content or contacts. Federally, Congress is currently debating the Kids Online Safety Act (KOSA), which imposes a “duty of care” on covered platforms to “prevent and mitigate” children’s access to certain content deemed harmful to them. Critics highlight the vagueness of terms within these bills, which could force platforms to remove an enormous amount of valuable, non-offensive, constitutionally protected content. In fact, CAADCA was recently blocked by a federal judge for this exact reason, while KOSA has received widespread condemnation from organizations raising the alarm on censorship.


Censorship would particularly target LGBTQ+ content, preventing children from accessing information that could be vital to their self-discovery and quite literally save lives. Coupled with moderation technologies that have been shown to be vulnerable to biases and errors, even the most innocuous LGBTQ+ content faces the risk of suppression or removal.


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Further, since the definition of "best interest” is subjective, these provisions can be weaponized to align with the agendas of anti-LGBTQ+ politicians or groups. Discriminatory ideologies are eager to exploit language like this, leading to the suppression of LGBTQ+ voices and resources. Inadvertently, legislation designed to safeguard children could become a tool for discrimination.


The fear of this exploitation is not unwarranted. Senator Marsha Blackburn, an architect of KOSA, said the quiet part out loud in a recently-published interview with the Family Policy alliance, stating that “protecting minor children from the transgender in this culture” is a top priority for conservative lawmakers, before lauding KOSA as a means of preventing children from being “indoctrinated.” Preeminent conservative think tank The Heritage Foundation has made its connection between KOSA and LGBTQ+ suppression explicit, stating in a May 20 tweet that one of the benefits of KOSA would be “keeping trans content away from children.” This focus on suppression not only undermines freedom of expression but endangers the very communities the bills aim to protect.


Similarly, empowering state attorneys general to enforce these bills could lead to legislative weaponization by anti-LGBTQ+ states and the Attorney Generals within them. Allowing such states to influence content on a national scale could create a hostile environment for LGBTQ+ individuals, stripping away their access to supportive communities and vital resources.

In 2022, Texas Attorney General Ken Paxton publicly pronounced that he had “no doubt” gender-affirming care for youth is a form of “abuse under Texas law,” ignoring all evidence to the contrary provided by experts and the medical community. Instead, Paxton claimed he and the Texas Department of Family and Protective Services had a “duty” to punish families and doctors providing such care. There is little question that authorities like Paxton would utilize “best interest of the children” language as a similar cudgel to punish platforms in an attempt to limit LGBTQ+ content.


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Crafting social media safety measures requires a deep understanding of the diverse needs of all youth, and it is imperative for legislators to recognize the nuanced challenges faced by LGBTQ+ and other vulnerable youth. Striking a balance between online safety and the preservation of vital online resources is essential to foster an inclusive digital space that empowers rather than endangers the well-being of our youth. In their current forms, the “best interest” provisions in bills like CAADCA and KOSA risk removing resources and fracturing online communities. A more balanced approach is needed, one that respects freedom of expression and ensures the availability of vital content for vulnerable populations. In doing so, we can create an online environment that truly serves the best interest of every child.

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