When Government Content Curation Meets Free Speech: The UK Online Safety Act vs. US First Amendment Principles
The Fundamental Clash Between Two Legal Philosophies
The UK's Online Safety Act (OSA) represents one of the most comprehensive attempts to regulate online content at a national level. Passed in October 2023 and implemented throughout 2024-2025, the Act places extensive duties on social media platforms and search services to protect users from illegal content and content harmful to children. Yet from an American constitutional perspective, the OSA's core mechanism—requiring platforms to moderate content according to government standards—runs headlong into First Amendment protections articulated in the Supreme Court's 2024 decision in Moody v. NetChoice.
Compliance Hub
The collision isn't merely theoretical. It represents fundamentally different approaches to balancing online safety against free expression, with implications for how democratic societies can regulate the digital public square.
Understanding the UK Online Safety Act
What the OSA Actually Does
The Online Safety Act creates a "duty of care" framework enforced by Ofcom, the UK communications regulator. The Act requires covered platforms to:
Illegal Content Duties (In effect since March 2025):
- Conduct comprehensive risk assessments for illegal content
- Implement proactive systems to prevent users from encountering illegal content
- Rapidly remove illegal content when identified
- Maintain clear, accessible terms of service explaining protections
Child Safety Duties (In effect since July 2025):
- Prevent children from accessing pornography through "highly effective age assurance"
- Protect children from content encouraging self-harm, suicide, or eating disorders
- Assess and mitigate risks of encountering harmful content where children are likely users
Enforcement Powers:
- Fines up to £18 million or 10% of global annual revenue, whichever is higher
- Power to block non-compliant services from UK access
- Ability to pursue criminal penalties for senior managers in cases of non-compliance
The Act covers user-to-user services (social media, forums, etc.) and search services with links to the UK. It explicitly defines 15 categories of "priority illegal harms" that platforms must address, including terrorism content, child sexual abuse material, fraud, and hate crimes.
For a comprehensive analysis of the OSA's implementation and cross-border impacts, see our Digital Compliance Alert: UK Online Safety Act and EU Digital Services Act Cross-Border Impact Analysis.
Compliance Hub
The Proactive Duty: A Key Departure
What makes the OSA revolutionary—and controversial—is its shift from reactive to proactive content moderation. Under previous UK law derived from the EU e-Commerce Directive, platforms operated on a "notice and takedown" basis: they acted after being notified of problematic content.
The OSA flips this model. Platforms must now implement systems and processes to prevent illegal or harmful content from appearing in the first place. As the Act's guidance states, platforms must take "proportionate measures to mitigate and manage risk in relation to illegal content, which importantly will involve preventing users from encountering such content on their services at the outset."
This represents precisely what US courts have repeatedly held violates the First Amendment: government direction of private editorial choices.
The Moody v. NetChoice Framework
The Supreme Court's Decision
In July 2024, the US Supreme Court addressed Florida and Texas laws that restricted how social media platforms could moderate content. While the Court vacated lower court decisions on procedural grounds, it articulated clear First Amendment principles that directly challenge regulatory approaches like the UK's OSA.
Justice Kagan, writing for the majority, explained:
"The government may not, in supposed pursuit of better expressive balance, alter a private speaker's own editorial choices about the mix of speech it wants to convey."
The Court identified three core First Amendment principles relevant to platform regulation:
1. Editorial Discretion as Protected Speech
When platforms curate feeds by "combining 'multifarious voices' to create a distinctive expressive offering," they engage in constitutionally protected activity. The Court compared this to newspaper editorial boards selecting which letters to publish or parade organizers choosing which groups to include. This principle has significant implications for other regulatory efforts, including California's SB 771, which similarly attempts to regulate platforms' algorithmic content decisions.
The opinion emphasized: "An entity 'exercising editorial discretion in the selection and presentation' of content is 'engaged in speech activity.'" This protection applies whether the content comes from the platform itself or from third parties.
2. Government Cannot Mandate Inclusion
The Court held that "ordering the excluded to be included" in a compilation "alters the content of the compilation" and creates "a different opinion page or parade, bearing a different message." When government overrides these editorial choices, it "confronts the First Amendment."
Critically, this protection doesn't depend on how much content a platform rejects. Even if a platform accepts most submissions and rejects only a few, the First Amendment protects those exclusionary choices. The Court noted that such "focused editorial choice packs a peculiarly powerful expressive punch."
3. Balancing the Marketplace of Ideas Is Not a Valid Government Interest
Perhaps most importantly for comparing the OSA to US law, the Court firmly rejected the notion that government can regulate platform content to achieve better "balance" in public discourse:
"But in case after case, the Court has barred the government from forcing a private speaker to present views it wished to spurn in order to rejigger the expressive realm... However imperfect the private marketplace of ideas, here was a worse proposal—the government itself deciding when speech was imbalanced, and then coercing speakers to provide more of some views or less of others."
The Court applied this principle even where platforms possess disproportionate influence over public discourse. Texas's interest in "protecting a diversity of ideas" failed constitutional scrutiny because states cannot "tilt public debate in a preferred direction" by regulating private editorial choices.
What Moody Prohibits
Under Moody's framework, government regulations that:
- Mandate what content platforms must carry or display
- Prohibit platforms from removing content based on viewpoint
- Require platforms to treat all viewpoints equally in their curation
- Alter platforms' expressive product to achieve government-preferred "balance"
All violate the First Amendment when applied to platforms' curated feeds and content-moderation decisions.
As the Court explained, platforms cannot be forced to promote content supporting "Nazi ideology," "terrorism," "racism," "teenage suicide," or "false claims of election fraud" if those content choices reflect the platform's own editorial standards.
The OSA Through a US Constitutional Lens
Incompatibility with Editorial Discretion
The Online Safety Act's proactive duty requirement appears fundamentally incompatible with Moody's editorial discretion principle. Consider how the OSA operates:
Illegal Content Duties: The Act requires platforms to prevent users from encountering content in 15 "priority illegal harm" categories. While removing genuinely illegal content might seem straightforward, the OSA goes further: platforms must design their systems to prevent this content from appearing in the first place, regardless of whether the content aligns with the platform's own content standards.
Under US constitutional principles, a platform that wants to allow robust political discussion—even on topics that approach but don't cross legal lines—would have First Amendment protection for that editorial choice. The OSA's proactive duty removes this discretion.
Child Safety Duties: The OSA mandates that platforms "likely to be accessed by children" must implement highly effective age verification and prevent children from accessing not just illegal content, but also "content harmful to children" as defined by statute. This includes content encouraging self-harm, suicide, or eating disorders.
While protecting children is a compelling interest, the First Amendment analysis focuses on how that protection is achieved. US law distinguishes between:
- Prosecuting those who produce illegal content (constitutional)
- Requiring platforms to filter all content through government-defined harm standards (unconstitutional under Moody)
Risk Assessment Requirements: The OSA requires platforms to conduct continuous risk assessments and implement government-approved mitigation measures. Ofcom's codes of practice, spanning thousands of pages, prescribe specific systems and processes platforms must adopt.
This represents the government dictating not just outcomes but the editorial processes themselves—precisely what Moody prohibits. As the Court noted, Florida could not "substitute 'governmental regulation' for the 'crucial process' of editorial choice."
The "Co-option" Problem
The one-pager image included with this analysis identifies the core issue from a US perspective: the OSA "coopts tech platforms to act in ways that result in good outcomes."
This is the very mechanism Moody declares unconstitutional. Government cannot pursue even laudable goals—protecting children, combating terrorism, preventing suicide—by taking over private editorial functions. The Supreme Court's precedent establishes that:
"The way the First Amendment achieves [a well-functioning sphere of expression] is by preventing the government from 'tilt[ing] public debate in a preferred direction,' not by licensing the government to stop private actors from speaking as they wish and preferring some views over others."
The OSA's defenders would argue the Act doesn't mandate specific viewpoints but rather requires removal of objectively harmful content. However, Moody rejects this distinction. When Texas argued its law was merely preventing "viewpoint discrimination" by platforms, the Court saw through the rhetorical framing:
"When Texas uses that language, it is to say what private actors cannot do: They cannot decide for themselves what views to convey. The innocent-sounding phrase does not redeem the prohibited goal."
Ofcom's Regulatory Role
The OSA's implementation through Ofcom—an independent regulator developing detailed codes of practice through consultation—might seem to create distance between government and content decisions. However, US constitutional doctrine looks through such mechanisms.
In Moody, the Court emphasized that government cannot achieve through indirect means what it cannot do directly. Whether content standards come from legislation, administrative regulation, or government-supervised industry codes makes no constitutional difference. The key question is whether government compels alteration of a private speaker's editorial choices.
Ofcom's role as enforcer—with power to investigate, fine, and ultimately block services—means platforms face government coercion to modify their expressive products. This is precisely the "governmental regulation" of editorial choice that violates the First Amendment.
Why This Matters: Competing Democratic Visions
The UK's Democratic Safety Model
The UK's approach reflects a parliamentary democracy's view that elected representatives can determine appropriate speech boundaries and require private actors to enforce them. The OSA embodies several premises:
- Democratic Legitimacy: Parliament, representing the people, can define what content is harmful and mandate its removal
- Child Protection Primacy: Protecting children from online harm justifies substantial regulation of speech platforms
- Market Failure: Major platforms have monopolistic power that requires government intervention to protect users
- Practical Necessity: Only government-mandated duties can effectively combat serious harms like terrorism and CSAM
From this perspective, the OSA represents democratic accountability over unelected tech company CEOs who currently make arbitrary content decisions affecting millions.
The US First Amendment Model
The American constitutional approach, articulated in Moody, embodies fundamentally different assumptions:
- Distrust of Government: The greatest threat to free expression is government power to define acceptable speech
- Private Curation as Speech: Even "bad" editorial choices by platforms are protected expression
- Marketplace Competition: If platforms make poor content decisions, users and competitors should respond, not government
- Constitutional Limits: Even democratic majorities cannot override First Amendment protections
As the Moody Court explained, letting government "decide what counts as the right balance of private expression" represents one of the greatest dangers to free expression. Better an imperfect private marketplace of ideas than government control over speech, however well-intentioned.
International Regulatory Divergence
This clash extends beyond UK-US differences. The EU's Digital Services Act, Australia's Online Safety Act, and Canada's Online News Act all employ similar co-option mechanisms. Meanwhile, US companies face constitutional barriers to complying with such requirements for American users.
The result is regulatory fragmentation: platforms must either operate different systems for different jurisdictions (costly and complex) or choose between serving markets with incompatible legal frameworks. For more on how the EU's DSA creates similar challenges, see The EU's Digital Services Act: A New Era of Online Regulation and our analysis of Global Digital Compliance Crisis: How EU/UK Regulations Are Reshaping US Business Operations.
Potential Reconciliation or Permanent Conflict?
Areas of Possible Alignment
Some OSA provisions might survive First Amendment scrutiny:
Transparency Requirements: Mandating that platforms disclose their content moderation standards and enforcement data likely constitutes permissible compelled commercial speech under Zauderer v. Office of Disciplinary Counsel. Moody suggested such disclosures must not "unduly burden expression," but basic transparency rules should satisfy this standard.
Age Verification for Pornography: Requiring age gates before accessing pornographic content differs from requiring content removal. The state's ability to restrict minors' access to obscene material is well-established, though implementation questions remain.
Illegal Content Defined by Common Law Crimes: Where content clearly violates existing criminal law (CSAM, true threats, incitement to imminent lawless action), platforms likely have less First Amendment protection to host such material. However, the distinction between removing content pursuant to criminal law enforcement versus proactive filtering under regulatory mandate remains significant.
Notice and Takedown: Traditional reactive systems, where platforms remove specific illegal content after notice, create fewer First Amendment concerns than proactive filtering systems.
Irreconcilable Differences
Other OSA elements appear fundamentally incompatible with US constitutional principles:
Proactive Filtering Duties: Requiring platforms to prevent content from appearing based on government-defined harm categories directly conflicts with Moody's prohibition on government alteration of editorial choices.
"Likely to Cause Harm" Content: The OSA's extension beyond clearly illegal material to content "harmful to children" requires platforms to adopt government's substantive judgments about appropriate speech—the core First Amendment violation.
Government-Mandated Content Standards: Ofcom's detailed codes of practice prescribing specific content moderation approaches substitute government judgment for platform editorial discretion.
Enforcement Through Financial Penalties: Using crippling fines to compel compliance with government content standards represents impermissible government coercion of speech.
Practical Implications
For US Platforms Operating in UK
American platforms face difficult choices:
- Geographic Segmentation: Operate different content moderation systems for UK users, accepting higher costs and technical complexity
- Comply Globally: Apply UK standards worldwide, potentially violating First Amendment principles for US users
- Exit UK Market: Withdraw services from the UK rather than compromise core editorial principles
Meta has already suggested it would rather be blocked in the UK than compromise encryption standards. Similar confrontations loom over content moderation. The growing conflict between US platforms and UK regulators has led to unprecedented legal battles, as detailed in our article When Domestic Law Goes Global: The Online Safety Act's Constitutional Collision with American Free Speech.
For UK Users
British users may find:
- Service Withdrawals: Some platforms, particularly smaller services, may exit the UK market rather than comply
- Reduced Features: US platforms may offer limited functionality to UK users to minimize OSA obligations
- Innovation Chilling: New platforms may avoid UK users entirely given compliance costs
For Global Speech Norms
The UK-US divergence matters globally:
- Race to the Bottom: Will platforms adopt the most restrictive standards globally to simplify compliance?
- Western Disunity: Can liberal democracies present a unified vision of online rights?
- Authoritarian Precedent: Do acts like the OSA provide cover for authoritarian content controls?
The broader trend of democratic nations implementing similar restrictions raises fundamental questions about the future of free expression online. For a comprehensive look at this global pattern, see The Global Surge in Online Censorship Laws: A Compliance Wake-Up Call for 2025.
Looking Forward
The tension between the UK's Online Safety Act and US First Amendment principles reflects an unresolved question in democratic governance: When does legitimate safety regulation become impermissible speech control?
Moody v. NetChoice provides a clear US constitutional answer: Government may not co-opt private platforms to enforce government-preferred content balances, even for seemingly compelling reasons like child safety or combating terrorism. The First Amendment protects platforms' editorial discretion precisely because the alternative—government control over the expressive marketplace—poses greater dangers to free society.
The UK, operating under different constitutional traditions, has made the opposite choice: Democratic majorities, acting through Parliament and independent regulators, may define harmful content and require private actors to remove it. For an alternative framework that attempts to balance safety with freedom, see our Internet Bill of Rights: A Framework for Digital Freedom in the Age of Censorship.
Both approaches claim to serve freedom and democracy. But only one can prevail in any given jurisdiction. As digital platforms increasingly operate globally while facing incompatible national regulations, this constitutional clash will only intensify. This represents a fundamental shift from the Section 230 framework that has governed US internet regulation for decades—see our analysis of Section 230: The Backbone of the Internet and Its Controversies.
For cybersecurity professionals, policymakers, and platform operators, understanding this fundamental conflict is essential. The question is not whether the OSA achieves good outcomes—it may well protect vulnerable users. The question is whether democratic societies can or should achieve safety through government control of private editorial functions.
Under US constitutional principles established in Moody, the answer remains clearly: No.
Key Takeaway: The UK Online Safety Act's core mechanism—requiring platforms to proactively moderate content according to government-defined standards—directly violates First Amendment principles articulated in Moody v. NetChoice (2024). The Supreme Court held that government may not alter private speakers' editorial choices to achieve better "expressive balance," even when pursuing compelling interests. This represents a fundamental incompatibility between UK regulatory philosophy and US constitutional protections, with significant implications for global platform governance.
Related Articles on ComplianceHub.wiki
US Constitutional & Regulatory Framework
- Section 230: The Backbone of the Internet and Its Controversies - Understanding the legal foundation that shields US platforms from liability
- California SB 771: What Social Media Platforms Need to Know About the Pending Civil Rights Liability Law - State-level attempts to regulate algorithmic content decisions
UK & EU Digital Regulation
- Digital Compliance Alert: UK Online Safety Act and EU Digital Services Act Cross-Border Impact Analysis - Comprehensive analysis of implementation and compliance requirements
- When Domestic Law Goes Global: The Online Safety Act's Constitutional Collision with American Free Speech - The legal battle over extraterritorial enforcement
- The EU's Digital Services Act: A New Era of Online Regulation - Understanding Europe's comprehensive content moderation framework
- Brussels Set to Charge Meta Under Digital Services Act for Content Moderation Failures - Enforcement actions reveal regulatory approach
Global Compliance Challenges
- Global Digital Compliance Crisis: How EU/UK Regulations Are Reshaping US Business Operations and AI Content Moderation - Impact on American companies
- The Global Surge in Online Censorship Laws: A Compliance Wake-Up Call for 2025 - Worldwide regulatory trends
- Tech Giants Pledge Compliance but Warn of Major Challenges as Australia Introduces Online Verification Law - Similar challenges in Australia
Alternative Frameworks & Policy Perspectives
- The Internet Bill of Rights: A Framework for Digital Freedom in the Age of Censorship - Alternative approach balancing safety and freedom
