A trio of bills aimed at regulating the internet to protect children in Colorado have run into a wall of opposition — along with “concerns” from the governor — over worries they’d infringe on First Amendment rights.
The sponsors of Senate Bill 201, which would have required age verification to access online pornographic materials, killed their bill on the floor this week in an acknowledgement that Gov. Jared Polis would likely veto the measure. Two other bills aimed at adding social media regulations, in part to protect underage youth from criminal activity, are also in danger of being vetoed.
Taken together, the hurdles facing the three bills show the push and pull of balancing the protection of the state’s youth with concerns about impeding the free flow of information and violating rights guaranteed by the U.S. Constitution.
One of the social media measures, House Bill 1287, would require social media companies like Meta and X to implement age-verification systems and parental controls for underage users. It is stalled in the House as backers try to address concerns that it would give the government too much influence over the platforms.
The other proposal, Senate Bill 86, has passed the legislature. Its backers organized a news conference Monday to urge Polis to sign it. Early next week, opponents of the bill — including the American Civil Liberties Union of Colorado, the NAACP and ProgressNow Colorado, a liberal advocacy group — are planning a news conference Tuesday to urge Polis to veto it.
That bipartisan bill would require stricter enforcement of terms of service on the platforms, require them to publish reports about how minors use the platforms and require stricter cooperation with law enforcement. At the event urging Polis to sign it into law, supporters warned of kids being “sextorted” by online predators or getting access to illegal guns and drugs through social media.
They brought out families whose children died from tainted drugs they bought on social media.
“(This bill) simply says that for users egregiously harming our kids, they cannot be given endless chances — chance after chance, time after time — to continue victimizing others,” Sen. Lisa Frizell, a Castle Rock Republican who is sponsoring the bill, said. “If the kind of conduct that we see on these social media platforms were happening on the street, there would be no question about intervention. None.”
Sen. Lindsey Daugherty, an Arvada Democrat and sponsor, called the platforms’ enforcement of their own terms of service “grossly inadequate.”
Will Polis sign measure?
Polis has until Thursday to sign the measure or let it become law. In a statement, a spokesperson for Polis noted the twin goals of “protecting internet freedom and making all Coloradans safer” that are in tension.
“(Polis) shares the sponsors’ goal of protecting children from harmful materials online by giving parents more tools and information to ensure that children only access appropriate content,” Shelby Wieman wrote in the statement. “He wants to ensure that this is done in a way that respects our Constitution and case law and ensures the privacy of all people online. The governor has been upfront with the legislature about his concerns on these bills.”
While Polis hasn’t acted on the bill yet, backers say they’re confident they could muster the two-thirds majorities necessary for a rare override of a veto. It passed each chamber with support above that threshold.
That is a tactic available only for SB-86, however — since it passed early enough in the legislative session, and with enough support, for an override to be a viable route.
SB-201, the bill with the age-verification requirement to access online sexual materials, would have passed too late in the legislative session to make a veto override feasible. Colorado law gives the governor 10 days to veto a bill if it arrives on his desk before the 110th day of the 120-day legislative session. If it passes both chambers later than that, lawmakers would need to call a special session for an override vote.
That calendar math led Daugherty and Sen. Paul Lundeen, a Monument Republican sponsoring it with her, to kill that bill on their own and leave the legislature more time for other matters. But they said they planned to return to the issue next year.
Both lawmakers saw that bill as an effort to bring the current state law banning minors from accessing physical copies of pornography into the 21st century.
“It’s already illegal,” Daugherty said. “We’re just trying to create an enforcement mechanism.”
Research shows that unfettered access to pornography can shape developing brains and young people’s perceptions of relationships, healthy sexual conduct and more, she said, underscoring the need to restrict adult materials to adults.
But countermessaging to the proposal “went off the rails,” Daugherty said. She and Lundeen hope for temperatures to cool before the conversation resumes next year. They also expect additional guidance from an expected U.S. Supreme Court ruling in Free Speech Coalition v. Paxton. In that case, a trade group for the adult entertainment industry is challenging a Texas law that requires age verification to access pornographic websites.
“If you’re going to do it, do it right”
The Free Speech Coalition from that case also opposes the Colorado bill. Mike Stabile, its director of public policy, said the idea sounds logical on its face, “but in practicality, you’re preventing the vast majority of adults from accessing adult content.”
Such a restriction pushes adults who want to preserve their anonymity — or just avoid the hassle of verification — away from legitimate adult websites and toward those that would skirt the law, he said. He also raised First Amendment concerns: That amendment doesn’t just protect free speech, he said, but the ability for others to access it.
“We’re not opposed to age verification,” Stabile said. “… But if you’re going to do it, do it right. Do it in a way that’s effective.”
He also warned that the bill would amount to backdoor censorship of things like homosexuality — an issue that Daugherty and Lundeen say they hope to address with a related bill. During debate on SB-201, they found the state definition of sexually explicit materials deemed harmful to children still includes “homosexuality.” The lawmakers plan to run a separate bill this year to remove it.
For ProgressNow Colorado, one of the chief opponents of the measures, the overriding concern remains the First Amendment, said its political director, Hazel Gibson.
The bill awaiting Polis’ decision, SB-86, would require social media companies to more rigorously police their platforms. Or, as she describes it: “That’s the government telling a private business they have to remove people.”
She also warned that the bill would blur the line between private companies and law enforcement with the bill’s requirements for stricter cooperation with authorities. She referred to the CEO of Facebook and Instagram’s parent company, Meta.
“I don’t know about you,” Gibson said, “but I don’t want Mark Zuckerberg having that kind of role in my life.”
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