 |
VOOZH | about |
|
VOOZH | about |
The recent “internet addiction” verdicts against Apple, Meta, and YouTube drew applause from those eager to see big tech take a hit. But look behind the headlines and the result is something else entirely. These cases won’t help children. They will fuel a litigation plague that raises costs, chills innovation and hits smaller companies the hardest.
The legal theory behind these cases tries to work around Section 230 by shifting the focus from user content to product design. Plaintiffs argue that features like infinite scroll or “like” buttons create harm independent of users’ personal content. It is a creative argument. It is also a slippery slope with no clear limiting principle.
Once product design becomes the hook for liability, any widely used product becomes a target. Newspapers, magazines and even packaged goods design headlines with catchy taglines to capture attention. Platforms do the same with feeds, to deliver value to their users. Labeling these as “addictive” design shouldn’t be seen as a viable path to sidestepping Section 230.
This shift also has broader economic consequences.
Trial lawyer lawsuits do not stay in the courtroom, they are priced into everything. Companies pay more for insurance, more for compliance, and more for legal defense. Those costs flow through to consumers in the form of higher prices and fewer options. At a moment when affordability dominates national conversations, this is a factor we cannot ignore.
These cases are shaped by a litigation system that rewards scale and escalation. They are enormously expensive and often backed by third-party funders, which drives plaintiffs’ lawyers to seek the highest possible damages. In last month’s Los Angeles trial, plaintiffs asked for billions but secured just $6 million, about 0.5% of what was requested. Even that figure is diminished when measured against the cost of bringing the case. And when outcomes fall short, the incentive is to pursue more cases or larger awards to justify the investment.
This burden is uniquely American. U.S. companies face a level of litigation exposure that most global competitors simply do not. That gap acts as an innovation tax on American firms, particularly small and early-stage companies that drive job creation and new ideas. We should be asking how to reduce that burden, not expand it.
Roughly 80% of CTA’s members are small or early-stage companies. They do not have the budgets or legal teams to absorb years of litigation risk. For them, the threat of open-ended lawsuits is not theoretical. It shapes what they build, how they build it, and whether they can exist it at all.
This is how an innovation economy slows without a single vote in Congress. Startups pull back, new features go unbuilt, and investment shifts away from risk. Over time, innovation slows, and momentum shifts from startups to incumbents.
None of this means concerns about children’s online experiences should be dismissed. They should be taken seriously. But lawsuits are blunt instruments that do little to address the underlying issues.
There are better and more effective paths.
Platforms have already invested heavily in tools that give parents real control over how their children use technology. Supervised accounts, screen time limits, content filters, and transparency into usage patterns are improving quickly and becoming easier to use. Industry efforts like NetChoice’s Digital Safety Shield build on that progress by putting parents in charge rather than outsourcing decisions to courts.
Congress also has a clear role. A national privacy law that protects personal data, including children’s information, would provide real safeguards while giving companies a consistent set of rules. What Congress should avoid is layering on vague obligations that invite more litigation. It’s delayed action for years. It should not delay further.
And parents remain central. Technology has changed, but the need for engagement has not. Knowing what children are doing online, setting boundaries and staying involved matters more than any verdict.
Social media is a powerful tool with real benefits and real risks. The right response is to manage those tradeoffs in a practical way that protects children without undermining innovation.
Recent verdicts move us in the opposite direction. They reward litigation, raise costs and make it harder for the next generation of companies to succeed.
We should focus on solutions that help children, not expand a system that is already very good at benefiting trial lawyers.
Michael Petricone is the Senior VP of Government Affairs at the Consumer Technology Association.
Filed Under: innovation, internet addiction, liability, negligence, product liability, section 230, trial lawyers
Companies: meta
California recently passed a law that will, in practice, cause AI chatbots to respond to any hint of emotional distress by spamming users with 988 crisis line numbers, or by cutting off the conversation entirely. The law requires chatbot providers to implement “a protocol for preventing the production of suicidal ideation” if they’re going to engage in mental health conversations at all, with liability waiting for any provider whose conversation is later linked to harm. New York is considering going further, with a bill that would simply ban chatbots from engaging in discussions “suited for licensed professionals.” Similar proposals are moving in other states.
If you’ve been reading Techdirt for any length of time, you know exactly what’s happening here. It’s the same moral panic playbook we’ve seen deployed against cyberbullying, then against social media, and now against generative AI. Something terrible happens. A handful of tragic stories emerge. Lawmakers, desperate to show they’re doing something, reach for the most visible technology in the room and start passing laws designed to stop it from doing whatever it was supposedly doing. The possibility that the technology might actually be helping more people than it’s hurting, or that the proposed fix might make things worse, rarely enters the conversation.
Professor Jess Miers and her student Ray Yeh had a terrific piece at Transformer last month that actually engages with the data and the incentive structures here, and their central argument may seem counterintuitive to many: the way to make AI chatbots safer for people in mental health distress might be to reduce liability for providers. For many people, I’m sure, that will sound backwards. That is, until you actually think through how the current liability regime shapes behavior — as well as reflect on what we know about Section 230’s liability regime in a different context.
First, though, the empirical reality that rarely makes it into the moral panic coverage. People are using AI chatbots for mental health support at massive scale, and a lot of them say it’s helping:
A small number of tragic stories have spurred lawmakers into regulating how chatbots should help people who are dealing with mental health issues. Yet chatbots have emerged as first aid for people experiencing mental health issues, providing genuine benefit to those who aren’t in crisis but are not OK either. Heavy-handed legislation risks derailing this breakthrough in support, creating more problems than it solves.
Over a million people are using general-purpose chatbots for emotional and mental health support per week. In the US, those that use chatbots in this way primarily seek help with anxiety, depression, relationship problems, or for other personal advice. As conversational systems, chatbots can sustain coherent exchanges while conveying apparent empathy and emotional understanding. Many chatbots also draw on broad knowledge of psychological concepts and therapeutic approaches, offering users coping strategies, psychoeducation, and a space to process difficult experiences.
In a study of more than 1,000 users of Replika — a general-purpose chatbot with some cognitive behavioral therapy-informed features — most described the chatbot as a friend or confidant. Many reported positive life changes, and 30 people said Replika helped them avoid suicide. Similar patterns appear among younger chatbot users. In a study of 12–21-year-olds — a group for whom suicide is the second leading cause of death — 13% of respondents used chatbots for some kind of mental health advice, of which more than 92% said the advice was helpful.
There are, obviously, some limits to the Replika study, including that the data is from a few years ago, and it involves self-reporting, which can always lead to some wacky results. But it is notable that this study was done by Stanford academics (i.e., not Replika itself) and was good enough to get published in Nature. And it does seem notable that even with the methodological limitations, so many people self-reported that the service helped them avoid suicide. For all the attention-grabbing stories of chatbots being blamed for encouraging suicidal ideation, that seems important. Same with the claim of 92% that the mental health advice was helpful.
It feels like these kinds of numbers should be at the center of any serious policy conversation. Instead, they’re almost entirely absent from the legislative discussion, which focuses exclusively on the (very real, very tragic, but still somewhat rare) cases where things went wrong.
A big part of the reason chatbots are filling this gap is that the traditional mental health system isn’t remotely equipped to meet existing demand. Nearly half of Americans with a known mental health condition never seek professional help. There are plenty of reasons for this, ranging from the cost of mental health treatment, to the general stigma of being seen as needing such help, not to mention potential professional and social consequences.
As Miers and Yeh put it: “many stay silent, waiting to see if things get worse.”
Chatbots, whatever their limitations, offer something the professional system largely cannot: they’re always available in a form many people feel more comfortable talking with:
By contrast, chatbots offer low-friction, low-stakes, and always-available support. People are often more willing to speak candidly with computers, knowing that there is no human on the other side to judge or feel burdened. Some people even find chatbots to be more compassionate and understanding than human healthcare providers. AI users may feel more comfortable sharing embarrassing fears, or questions they might otherwise hold back. For clinicians, discussing these interactions can surface insights into patients’ thoughts and emotions that were once difficult to access. For now, chatbot providers generally refrain from contacting law enforcement, leading to more candid conversations.
So what does the California-style regulatory approach actually do to this ecosystem? Faced with liability for any conversation later linked to harm, and unable to reliably predict which conversations those will be (in part because, as we covered recently, even clinicians who specialize in suicide prevention admit they often can’t predict it), providers will default to the behavior that minimizes legal exposure whether or not it helps users. That means reflexively pushing 988 at any mention of distress, or cutting off conversations entirely, or simply refusing to engage with mental health topics at all.
And that kind of defensive posturing can be actively harmful to those most at risk:
Suicide prevention is about connecting people to the right support. Sometimes that means crisis care like hotlines or immediate medical treatment. But blunt, impersonal responses can backfire. Pushing 988 at the first mention of distress may seem neutral, but for some, it triggers shame, and deepens hopelessness. For some, suicide prevention “signposting” causes frustration, especially for those who already know those resources exist. People often turn to the Internet, or a chatbot, because they’re looking for something else. Abruptly ending conversations can have the same effect. That’s why suicide prevention protocols like Question, Persuade, Refer(QPR) prioritize trust-building and open dialogue before offering help.
So the regulatory regime mandates behavior that can actively escalate distress, all while still leaving providers exposed to blame if tragedy follows anyway. It’s the worst of both worlds: worse outcomes for users, continued liability for providers, and a chilling effect on the research and development that might actually improve things.
We don’t need to speculate about whether this dynamic plays out in practice. We’ve already watched it happen with social media:
The social media ecosystem has already shown this dynamic. In response to regulatory pressure, major online services heavily moderate, or outright prohibit, suicide-related discussions, sometimes hiding content that could otherwise destigmatize mental health. That merely displaces the conversations, and the people having them, often into spaces with less oversight and support.
If this sounds familiar, it’s because it is. It’s the same pattern that emerges whenever policymakers try to make sensitive topics go away through platform liability: the topics don’t go away, they just migrate to darker corners where nobody is watching at all. A mental health crisis doesn’t magically disappear just because Instagram or TikTok hid the conversation. Those in need of help are more likely to then end up somewhere with fewer guardrails, fewer resources, and fewer people equipped to help.
This leads directly back to the core of the argument, which may feel a bit backwards at first. If we want chatbot providers to build genuinely better systems for handling mental health conversations — systems that can identify distress patterns, offer appropriate triage, connect users to professional care when that’s what’s needed, and sustain helpful conversation when it isn’t — we need a liability environment that doesn’t punish the attempt.
This is, incidentally, exactly the logic that produced Section 230 in the first place. Before Section 230, the Stratton Oakmont v. Prodigy ruling created a perverse situation where platforms that tried to moderate content faced more liability than platforms that did nothing. The obvious result, had that stood, would have been less moderation, not more, because the smart legal advice would have been “don’t touch anything.” Section 230 fixed that by ensuring that the act of moderation itself didn’t create liability, which in turn made it possible for platforms to actually invest in moderation systems. Contrary to the widespread belief among the media and politicians, Section 230 didn’t eliminate accountability — it smartly redirected incentives toward the behavior we actually wanted.
The same logic applies here. A targeted liability shield for AI providers engaged in mental health support could give them the space to invest in building better suicide detection, better triage pathways, and better handoffs to human professionals. But that won’t happen if every such attempt turns into a potential lawsuit. The research to enable this is already happening despite the hostile incentive environment:
Meanwhile, emerging research suggests chatbots show real promise for mental health support. Trained on large-scale data and refined with clinical input, large language models are getting better at spotting patterns of distress and responding to suicidal ideation in nuanced, personalized ways. In a recent UCLA study, researchers found that LLMs can detect forms of emotional distress associated with suicide that existing methods often miss—opening the door to earlier, more effective intervention. According to another study, the most promising approach may be a hybrid where AI flags risk in real time, and trained humans step in with targeted support.
That hybrid model — AI identifying risk, trained humans providing targeted intervention — is exactly the kind of system you’d want chatbot providers racing to build. Instead, the current regulatory trajectory is telling them: build that, and you’re just creating a liability sinkhole. Every time your system engages with a mental health conversation, you’ve created a potential future lawsuit. Better to just block the conversation entirely and hope the user finds help somewhere else.
I get that some people will reasonably worry that “less liability” sounds like a giveaway to AI companies that are already acting irresponsibly. But Miers and Yeh aren’t arguing that chatbots should be able to impersonate licensed therapists, or that there should be no accountability for products designed to be used by vulnerable users. The American Psychological Association’s approach — prevent chatbots from posing as licensed professionals, limit designs that mimic humans, expand AI literacy — is perfectly compatible with a liability shield for thoughtful, helpful mental health support. The point is to stop punishing the specific behavior we want more of: chatbots that try to actually help people who are struggling, including by building better pathways to professional care for those who need it.
Simply putting liability on the companies is unlikely to do that.
And for people in acute crisis, professional intervention is still a necessity. Nobody serious is arguing chatbots should wholly replace crisis lines or psychiatric care. The argument is that the vast majority of people using chatbots for mental health support are not in acute crisis — they’re anxious, lonely, depressed, processing a breakup, working through stress, looking for someone to talk to at 3am when their therapist isn’t available and calling 988 feels like overkill. For that population — which is the overwhelming majority — the regulatory regime being built assumes the worst and mandates responses that often make things worse.
The deeper problem, as we’ve written before, is that the entire framing of “AI causes suicide” relies on a confidence about the mechanics of suicide that clinicians themselves don’t have. About half of people who die by suicide deny suicidal intent to their doctors in the weeks or month before their death. Experts who have spent decades studying this admit they often cannot predict it even when treating patients directly. The idea that we can identify which chatbot conversation “caused” which outcome, and design liability around that identification, assumes a causal clarity that doesn’t exist anywhere in the actual science.
Good policy here would look very different from what’s being proposed. Miers and Yeh point to a Pennsylvania proposal that would fund development of AI models designed to identify suicide risk factors among veterans — incentivizing the research we actually need rather than punishing it. They suggest liability shields modeled on Section 230 that would encourage continued investment in safer, more responsive systems. They warn specifically against imposing a clinical regulatory framework (with its mandatory reporting requirements) onto general-purpose chatbots, because doing so would replicate exactly the barriers that already keep many people from seeking professional help.
None of this is as emotionally satisfying as “ban the thing that hurt people.” Moral panics rarely are, because moral panics are fundamentally about finding something to blame rather than about the harder work of actually understanding what’s happening and designing interventions that might help. But for the over one million people per week currently turning to chatbots for mental health support — a group that includes at least the thirty Replika users who credit the chatbot with keeping them alive — the difference between a regulatory regime that punishes thoughtful engagement and one that incentivizes it is the difference between having somewhere to turn at 3am or running into a wall of “please call 988” followed by a terminated conversation.
We’ve watched this movie before with social media. We know how it ends. The conversations just move somewhere worse, with fewer resources and less oversight. The tragedies keep happening — they just stop being visible to anyone who might be in a position to help. And the technology gets worse at the thing we want it to be better at, because the legal environment has made getting better into a liability.
If lawmakers are serious about mental health outcomes rather than political theater, they should be asking how to make chatbots better at this — how to build the hybrid human-AI triage systems the research is pointing toward, how to turn these tools into genuine funnels toward professional care when that’s what’s needed, how to preserve the candid, low-stakes space that people clearly find valuable. That project requires a liability regime that rewards trying to be better rather than punishing it. The alternative is what California just passed, and what New York is considering, and what we’ll keep getting until someone in the policy conversation is willing to notice that the intuitive answer here is producing the exact opposite of the intended outcome.
It’s a counterintuitive approach. It’s also the only one that has any chance of actually working.
Filed Under: 988, ai, california, liability, liability shield, mental health, moral panic, new york, section 230, suicide
If you want to overthrow Big Tech, you’ll need Section 230. The paradigm shift being built with the Open Social Web can put communities back in control of social media infrastructure, and finally end our dependency on enshittified corporate giants. But while these incumbents can overcome multimillion-dollar lawsuits, the small host revolution could be picked off one by one without the protections offered by 230.
The internet as we know it is built on Section 230, a law from the 90s that generally says internet users are legally responsible for their own speech — not the services hosting their speech. The purpose of 230 was to enable diverse forums for speech online, which defined the early internet. These scattered online communities have since been largely captured by a handful of multi-billion dollar companies that found profit in controlling your voice online. While critics are rightly concerned about this new corporate influence and surveillance, some look to diminishing Section 230 as the nuclear option to regain control.
The thing is, that would be a huge gift to Big Tech, and detrimental to our best shot at actually undermining corporate and state control of speech online.
We’re fed up with legacy social media trapping us in walled gardens, where the world’s biggest companies like Google and Meta call the shots. Our communities, and our voices, are being held hostage as billionaires’ platforms surveil, betray, and censor us. We’re not alone in this frustration, and fortunately, people are collaborating globally to build another way forward: the Open Social Web.
This new infrastructure puts the public’s interest first by reclaiming the principles of interoperability and decentralization from the early internet. In short, it puts protocols over platforms and lets people own their connections with others. Whether you choose a Fediverse app like Mastodon or an ATmosphere app like Bluesky, your audience and community stay within reach. It’s a vision of social media akin to our lives offline: you decide who to be in touch with and how, and no central authority can threaten to snuff out those connections. It’s social media for humans, not advertisers and authoritarians.
Behind that vision is a beautiful mess of protocols bringing the open social media web to life. Each protocol is a unique language for applications, determining how and where messages are sent. While this means there is great variety to these projects, it also means everyone who spins up a server, develops an app, or otherwise hosts others’ speech has skin in the game when it comes to defending Section 230.
Section 230 protects freedom of expression online by protecting US intermediaries that make the internet work. Passed in 1996 to preserve the new bubbling communities online, 230 enshrined important protections for free expression and the ability to block or filter speech you don’t want on your site. One portion is credited as the “26 words that created the internet”:
“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
In other words, this bipartisan law recognizes that speech online relies on intermediaries — services that deliver messages between users — and holding them potentially liable for any message they deliver would only stifle that speech. Intuitively, when harmful speech occurs, the speaker should be the one held accountable. The effect is that most civil suits against users and services based on others’ speech can quickly be dismissed, avoiding the most expensive parts of civil litigation.
Section 230 was never a license to host anything online, however. It does not protect companies that create illegal or harmful content. Nor does Section 230 protect companies from intellectual property claims.
What Section 230 has enabled, however, is the freedom and flexibility for online communities to self-organize. Without the specter of one bad actor exposing the host(s) to serious legal threats, intermediaries can moderate how they see fit or even defer to volunteers within these communities.
The superpower of decentralized systems like the Fediverse is the ability for thousands of small hosts to each shoulder some of the burdens of hosting. No single site can assert itself as a necessary intermediary for everyone; instead, all must collaborate to ensure messages reach the intended audience. The result is something superior to any one design or mandate. It is an ecosystem that is greater than the sum of its parts, resilient to disruptions, and free to experiment with different approaches to community governance.
The open social web’s kryptonite though, is the liability participants can face as intermediaries. The greater the potential liability, the more interference from powerful interests in the form of legal threats, more monetary costs, and less space for nuance in moderation. And in practice, participants may simply stop hosting to avoid those risks. The end result is only the biggest and most resourced options can survive.
This isn’t just about the hosts in the Open Social Web, like Mastodon instances or Bluesky PDSes. In the U.S., Section 230’s protections extend to internet users when they distribute another person’s speech. For example, Section 230 protects a user who forwards an email with a defamatory statement. On the open social web, that means when you pass along a message to others through sharing, boosting, and quoting, you’re not liable for the other user’s speech. The alternative would be a web where one misclick could open you up to a defamation lawsuit.
Section 230 also applies to the infrastructure stack, too, like Internet service providers, content delivery networks, domain, and hosting providers. Protections even extend to the new experimental infrastructures of decentralized mesh networks.
Beyond the existential risks to the feasibility of indie decentralized projects in the United States, weakening 230 protections would also make services worse. Being able to customize your social media experience from highly curated to totally laissez-faire in the open social web is only possible when the law allows space for private experiments in moderation approaches. The algorithmically driven firehose forced on users by antiquated social media giants is driven by the financial interests of advertisers, and would only be more tightly controlled in a post-230 world.
Laws aimed at changing 230 protections put decentralized projects like the open social web in a uniquely precarious position. That is why we urge lawmakers to take careful consideration of these impacts. It is also why the proponents and builders of a better web must be vigilant defenders of the legal tools that make their work possible.
The open social web embodies what we are protecting with Section 230. It’s our best chance at building a truly democratic public interest internet, where communities are in control.
Republished from the EFF’s Deeplinks blog.
Filed Under: activitypub, atprotocol, open social web, section 230
We’ve been warning for a while now that Section 230 is dying by a thousand legal workarounds rather than a straightforward repeal, and the hits just keep coming. A few weeks ago, I wrote about how two jury verdicts against Meta in New Mexico and California should scare anyone who cares about the open internet, even if the instinct to cheer them on is understandable given how terrible Meta has been. Those verdicts adopted a legal theory that re-frames editorial decisions about how to present user-generated content as “product design” choices outside the scope of Section 230, functionally making the law irrelevant.
Now, the Massachusetts Supreme Judicial Court has gone even further. In a unanimous ruling in Commonwealth v. Meta Platforms, Inc., the state’s highest court has denied Meta’s motion to dismiss the state attorney general’s lawsuit, holding that Section 230 does not bar claims that Meta designed Instagram to be addictive to children, lied to the public about the platform’s safety, failed to properly age-gate underage users, and created a public nuisance. The court’s reasoning provides a clean, easily replicable template for any plaintiff anywhere to plead around Section 230, and it does so by mangling the statute’s text and ignoring key words while drawing a distinction between “content” and “content presentation” that collapses under even the slightest scrutiny.
Once again, since this always needs to be said in all of the articles about these rulings: Meta is a terrible company. It has spent years making terrible decisions. I don’t trust the company to make the right decisions even if only correct decisions were presented to it. Mark Zuckerberg deserves zero benefit of the doubt. But as I said last time, the legal theories being used to go after Meta here will not stay confined to Meta. They will be used against every website, every search engine, every forum, every email provider, and every small platform that makes any decision about how to present user-generated content. That’s what makes this ruling so dangerous.
Professor Eric Goldman, who has been tracking these cases more closely than perhaps anyone, put it bluntly:
This is not a good opinion for Section 230 on several dimensions.
First, as a state supreme court decision, it’s the final word for the Massachusetts state court system (unless the US Supreme Court intervenes). It provides a major beachhead for other courts to follow, both within Massachusetts and beyond.
Second, this court didn’t rely on the Lemmon “design defect” workaround. Instead, it said that the claim doesn’t relate to third-party content unless it’s based on the substance of the third-party content. This provides plaintiffs with another avenue to work around Section 230 in addition to the Lemmon/design defect workaround that other courts are accepting (even if they shouldn’t).
Third, as I explained, I don’t see any distinction between third-party content and the editorial choices about the manner of presenting that third-party content. By embracing that false dichotomy, the court invites plaintiffs to reframe their complaints to focus on content presentation instead of substance.
That last point is the most important part of the whole ruling. The court has now handed plaintiffs’ lawyers a magic formula: just say you’re suing about the presentation of content rather than the content itself, and Section 230 vanishes. Goldman lays out the playbook:
Here’s how a plaintiff’s argument could look: “I’m not suing about the third-party content, I’m suing about the design choices that elevated that third-party content over others.” These are literally the same thing in my mind. If this argument works, Section 230 is dead because plaintiffs will always embrace that workaround.
Looking at the court’s actual reasoning, things get messy fast.
Massachusetts’ complaint alleged that Meta “engaged in unfair business practices by designing the Instagram platform to induce compulsive use by children, engaged in deceptive business practices by deliberately misleading the public about the safety of the platform, and created a public nuisance by engaging in these unfair and deceptive practices.” Meta moved to dismiss on Section 230 grounds. The lower court denied the motion. Meta appealed.
The Massachusetts Supreme Judicial Court actually (correctly!) recognized that Section 230 provides immunity from being sued in the first place, not just a defense against paying up at the end. This matters procedurally, because immunity from suit means you get to appeal the denial of your motion to dismiss before trial — you don’t have to go through the whole expensive litigation process first and then appeal at the end. The court analyzed the language of Section 230(e)(3), and reached the right conclusion:
The plain meaning of “no cause of action may be brought” is that a suit may not be initiated in the first instance and the defendant cannot be forced to litigate the claim.
Great. The court got the procedural question right. Section 230 provides immunity from suit. Meta gets its interlocutory appeal. The whole point of Section 230, after all, has always been to get bad cases tossed early, before the ruinous expense of discovery and trial.
And then the court proceeded to deny the immunity anyway, meaning Meta now has to litigate the entire case on the merits despite supposedly having immunity from suit. The court gave Section 230 its proper procedural dignity with one hand and gutted it substantively with the other. Meta got to appeal early — and lost anyway. Now it faces full litigation on claims that Section 230 was designed to kill at the threshold. The outcome is a complete mess: the court has effectively turned “immunity from suit” into “the right to lose an appeal slightly faster.”
The heart of the court’s logic rests on a distinction between claims that impose liability based on the content of third-party information and claims that merely concern how that content is presented. To get there, the court engaged in a lengthy analysis of the phrase “treated as the publisher . . . of any information” in Section 230(c)(1), concluding that this phrase requires both a “dissemination element” and a “content element.” In other words, the court held that Section 230 only applies when a claim seeks to hold a platform liable for the substance of user-generated content it published — and that claims about design features like infinite scroll, autoplay, algorithmic recommendations, and notification systems target the how of publishing rather than the what, and therefore fall outside Section 230’s protection.
This ignores a long list of precedents — and the explicit statements of Section 230’s authors — establishing that the law was designed to protect platforms from being sued over any editorial decision-making, including how content is presented. To put this in perspective, it’s like saying that someone could sue, say, the evening news based on where they placed a story (top of the show or bottom?) and that the impact of how it was presented is somehow unrelated to the content itself. That makes no sense. But it’s the way this court has interpreted 230.
The court found that with respect to the unfair business practices claim:
The challenged design features (e.g., infinite scroll, autoplay, IVR, and ephemeral content) concern how, whether, and for how long information is published, but the published information itself is not the source of the harm alleged. Instead, the claim alleges that the features themselves induce compulsive use independent of the content provided by third-party users.
Meta tried to point out the obvious problem with this: without user-generated content, these design features don’t do anything harmful. Nobody’s getting addicted to infinite scroll through a feed of nothing. The court waved this away:
But the fact that the features require some content to function is not controlling; instead…to satisfy the content element, we look to whether the claim seeks to hold Meta liable for harm stemming from third-party information that it published. Here, the unfair business practices claim does not; the Commonwealth alleges that the features themselves prolong users’ time on the platform, not that any information contained in third-party posts does so. In this sense, the claim is indifferent as to the content published.
“Indifferent as to the content published.” No matter how many times courts (or media or politicians) make this claim, it never gets any more accurate. As I noted in my earlier piece about the California and New Mexico verdicts: imagine Instagram, but every single post is a video of paint drying. Same infinite scroll. Same autoplay. Same algorithmic recommendations. Same notification systems. Is anyone addicted? Is anyone harmed? Is anyone suing? Of course not. Because infinite scroll does nothing without content that makes people want to keep scrolling. The features and the content are inseparable. Saying the claim is “indifferent as to the content published” is a legal fiction, and everyone involved knows it.
Goldman makes this point through a newspaper analogy that’s worth quoting at length:
I don’t see any distinction between third-party content and the editorial choices about the manner of presenting that third-party content. By embracing that false dichotomy, the court invites plaintiffs to reframe their complaints to focus on content presentation instead of substance. … As an analogy, consider a dead-trees newspaper’s decision to publish a story: it is equally part of the newspaper’s editorial prerogative and publication decisions to decide to publish the story at all and to decide if the story should appear on the A1 front page or some interior page; what size typeface to use for the story headline; whether the story runs all on the same page or continues on a later page; etc. As applied to Meta, the decision to vary the delivery timing of new third-party content items (as one example) is just as much of Meta’s publication decision-making process about publishing the third-party content as whether the item will be published at all.
The fallout here goes way beyond just Instagram. A search engine decides to rank certain results higher than others — that’s a “design choice” about content presentation, not about the content itself. A forum uses “newest first” sorting — design choice. An email provider’s spam filter decides what goes to your inbox — design choice. A blog allows comments and displays them in threaded format — design choice. Under this court’s reasoning, all of those are potentially outside Section 230’s protection, because they concern how content is presented rather than the content’s substance. Every editorial decision a website makes about the display, ordering, timing, or format of user-generated content is now potentially a “design” claim that evades Section 230.
Especially given that the whole premise of these lawsuits is that these “design choices” are engineered to “addict” users — a claim that none of the cases have actually established as a clinical matter. They show signs of companies trying to make users of their products like and use them more. Which is what basically every company does. It’s sort of the nature of business. Should a state AG be able to sue a restaurant because its food was too delicious and people ate too much of it? TV shows end on cliffhangers. Books have page-turning chapter endings. Are those addictive design features subject to state AG enforcement?
There’s another serious problem with the court’s statutory analysis that Goldman flagged, and it’s frankly embarrassing for any court to make, let alone a state supreme court. Section 230(c)(1) says: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” The court spent pages analyzing what “publisher” means, diving into common-law publisher liability, legislative history, and the Cubby/Stratton Oakmont story line. But as Goldman observed:
Worse, the court extensively analyzes the word “publisher” but doesn’t say a word about the companion “speaker” term that appears two words later in the statute. This is another indicator of results-oriented decision-making. No matter what the court says “publisher” means, if the court disregards one of the other 26 words that has direct relevance to its meaning, the court is failing its #1 job of reading the damn statute. This omission is extremely embarrassing for the court, and it thoroughly undermines the credibility of the court’s recitation of precedent.
Whatever narrow common-law meaning you might ascribe to “publisher,” the word “speaker” is right there, broadening the scope. The court just… pretended it wasn’t. When a court conducting what it claims is a careful “plain meaning” analysis of a 26-word clause of the statute at the center of the case manages to ignore one of the operative words, that’s more than a tell. As Goldman noted:
When courts decide to review a 1996 statute from scratch in 2026, after over a thousand Section 230 cases have been decided, that’s usually an indicator that they are engaging in results-oriented decision-making, they don’t like the precedent, and they need another way to reach a different result.
Then there are the deception claims, which the court dispatched with even less effort. Massachusetts alleged that Meta lied to the public about Instagram being safe and not addictive. The court held that because these were Meta’s own statements, Section 230 obviously didn’t apply — the statute only protects against liability for third-party content, and Meta’s PR statements are first-party speech.
That much is technically defensible as a Section 230 matter. But the underlying theory has its own problems that the court didn’t bother grappling with. What does it mean for a company to “deceive” the public by saying its product is “safe”? Almost nothing is 100% safe. Cars aren’t perfectly safe. Food isn’t perfectly safe. Playgrounds aren’t perfectly safe. As we’ve written about before, the social media moral panic has systematically confused risks with harms. Something can carry risks without every user being harmed, and a company saying it takes safety seriously is not a guarantee that no bad outcome will ever occur to any user. If “we prioritize safety” plus “something bad happened to a user” equals fraud, then every tech company, car manufacturer, pharmaceutical firm, and food producer in the country is perpetually liable for “deception.”
Goldman noted that there are “obvious puffery/opinion defenses that could apply here” but weren’t addressed in the Section 230 analysis. That’s true. But the more fundamental problem is that the court’s framing of the deception claims, combined with its evisceration of Section 230’s applicability to the design claims, means all four counts now proceed to full litigation. The “public nuisance” claim got even less analysis — a single footnote saying that because the other claims survive Section 230, so does the nuisance claim that’s based on them. Goldman rightfully calls out how weak this is:
I’ve previously complained before about courts’ complete undertheorizing of how and why public nuisance claims can apply to social media, and this court doesn’t do any better. In a footnote, here is the court’s entire discussion about Section 230’s application to the public nuisance claim: “Because we conclude that § 230(c)(1) does not bar counts I to III, we also conclude that it does not bar the Commonwealth’s public nuisance claim, which is predicated on the same allegedly unfair and deceptive practices in counts I to III.”
Put it all together and the picture for Section 230 is bleak.
A few weeks ago, juries in New Mexico and California found Meta liable using the “design defect” workaround — arguing that features like infinite scroll and algorithmic recommendations are product design choices, not editorial decisions about third-party content. Those verdicts relied on the framework from Lemmon v. Snap, the somewhat problematic Ninth Circuit case that carved out a design-defect exception to Section 230, and which opened the floodgates to lawsuits like the ones we’re discussing here.
Somewhat oddly, the Massachusetts court explicitly declined to follow the Lemmon framework. It developed its own, different workaround: Section 230 only applies when a claim is based on the substance of third-party content, and claims about content presentation fall outside its scope. This is, as Goldman put it, “another avenue to work around Section 230 in addition to the Lemmon/design defect workaround that other courts are accepting.”
So we now have at least two distinct legal theories for pleading around Section 230, both blessed by courts, both available to any plaintiffs’ lawyer nationwide. And both accomplish the same thing: they take the editorial decisions that platforms make about user-generated content — the decisions that are the very heart of what Section 230 was designed to protect — and reclassify them as something else. “Design choices.” “Content presentation.” “Product features.” Call them whatever you want. The result is that Section 230 protects nothing that matters.
Goldman’s metaphor for all of this is apt:
Even if this opinion doesn’t outright eliminate Section 230 in Massachusetts, it’s a sign of how 230 workarounds keep proliferating, contributing to the swiss cheese-ification of Section 230. When the bubbles in the swiss cheese become too large, the cheese wedge lacks structural integrity and falls apart. That is where 230 is heading, if it’s not already there.
And this brings us to the thing that matters most, the thing that gets overlooked in every one of these cases: the procedural advantage of Section 230 was always the point. The whole reason Section 230 exists is to get bad cases thrown out early, before platforms have to spend millions in discovery and trial. Even if the First Amendment eventually protects many of the same editorial decisions, it does so at the end of expensive, protracted litigation. Section 230 was designed to get you out at the motion to dismiss stage.
And it wasn’t just the procedural advantage that mattered — it was the certainty. Platforms could make editorial decisions about how to present content knowing they were protected. That freedom meant editorial reasoning could lead, rather than legal risk-avoidance. A lawyer consulted before every design decision will never tell you to make the best call for users — only the least legally exposed one.
All of that has been thrown out the window. The certainty. The quick resolution. The ability for editorial reasoning to lead, rather than lawyerly concerns. These court rulings chip away at Section 230 bit by bit, and with it the ability for anyone to freely host content online without fear of getting sued.
The Massachusetts court’s ruling is the textbook example of how that benefit has been destroyed. The court correctly held that Section 230 provides immunity from suit — not just immunity from liability. It correctly allowed Meta to take an interlocutory appeal on exactly that basis. And then it ruled that the immunity doesn’t actually apply to any of the claims in the case. Meta exercised its right to an early appeal and got told it has to go litigate the whole thing anyway.
So what was the point? Meta got to go to the state supreme court, argue about immunity from suit, and then get sent right back to trial court to face all the same claims. Every future defendant in Massachusetts who raises a Section 230 defense will look at this ruling and know that the “immunity from suit” is a mirage. You get the appeal. You just don’t get the immunity, so long as the lawyers on the other side say the magic words. Which all of them will.
This is exactly the dynamic I warned about in my piece about the California and New Mexico verdicts. Even if these legal theories eventually get sorted out at the Supreme Court level, even if the First Amendment eventually provides some backstop, the practical reality is that Section 230’s core function — early dismissal of meritless cases — has been gutted. Every plaintiff’s lawyer now knows how to draft a complaint that survives a 230 motion to dismiss: just say “design” instead of “content.” Say “presentation” instead of “publication.” And you’re in. Discovery. Trial. Seven-figure legal bills. The whole show.
And smaller companies know this. Meaning they will either avoid hosting content altogether… or we’ll have the most powerful heckler’s veto in existence. Anyone who wants any third party content removed just needs to threaten a lawsuit using the magic words. And the mere threat of legal bills will mean the “smart” move will be to remove the content. All sorts of forums will suffer. Think about how Republican AGs will use this to argue that any site hosting LGBTQ+ content is causing harm. Think about the plaintiffs’ lawyers who will use any claimed “design” flaw as leverage for a shakedown settlement. If you thought that copyright trolling was bad, just wait until we see an entire collection of plaintiffs lawyers suing (or just threatening to sue while really seeking a settlement) any website they can claim made a “design choice” that leads to harm.
That’s the ballgame for small platforms. For independent forums. For startups trying to compete with the giants. Meta can absorb this. A new social media competitor cannot. Congress doesn’t need to repeal Section 230. The courts are doing it for them, one cleverly worded ruling at a time.
Filed Under: addiction, content presentation, design features, editorial freedom, massachusetts, section 230
Companies: meta
First things first: Meta is a terrible company that has spent years making terrible decisions and being terrible at explaining the challenges of social media trust & safety, all while prioritizing growth metrics over user safety. If you’ve been reading Techdirt for any length of time, you know we’ve been critical of the company for years. Mark Zuckerberg deserves zero benefit of the doubt.
So when a New Mexico jury ordered Meta to pay $375 million on Tuesday for “enabling child exploitation” on its platforms, and a California jury found Meta and YouTube liable for designing addictive products that supposedly harmed a young user on Wednesday, awarding $6 million in total damages, the reaction from a lot of people was essentially: good, screw ’em, they deserve it.
And on a visceral, emotional level? Sure. Meta deserves to feel bad. Zuckerberg deserves to feel bad.
But if you care about the internet — if you care about free speech online, about small platforms, about privacy, about the ability for anyone other than a handful of tech giants to operate a website where users can post things — these two verdicts should scare the hell out of you. Because the legal theories that were used to nail Meta this week don’t stay neatly confined to companies you don’t like. They will be weaponized against everyone. And they will functionally destroy Section 230 as a meaningful protection, not by repealing it, but by making it irrelevant.
Let me explain.
For years, Section 230 has served as the legal backbone of the internet. If you’re a regular Techdirt reader, you know this. But in case you’re not familiar, here’s the short version: it says that if a user posts something on a website, the website can’t be sued for that user’s content. The person who created the content is liable for it, not the platform that hosted it. That’s it. That’s the core of it. It serves one key purpose: put the liability on the party who actually does the violative action. It applies to every website and every user of every website, from Meta down to the smallest forum or blog with a comments section or person who retweets or sends an email.
Plaintiffs’ lawyers have been trying to get around Section 230 for years, and these two cases represent them finally finding a formula that works: don’t sue over the content on the platform. Sue over the design of the platform itself. Argue that features like infinite scroll, autoplay, algorithmic recommendations, and notification systems are “product design” choices that are addictive and harmful, separate and apart from whatever content flows through them.
The trial judge in the California case bought this argument, ruling that because the claims were about “product design and other non-speech issues,” Section 230 didn’t apply. The New Mexico court reached a similar conclusion. Both cases then went to trial.
This distinction — between “design” and “content” — sounds reasonable for about three seconds. Then you realize it falls apart completely.
Here’s a thought experiment: imagine Instagram, but every single post is a video of paint drying. Same infinite scroll. Same autoplay. Same algorithmic recommendations. Same notification systems. Is anyone addicted? Is anyone harmed? Is anyone suing?
Of course not. Because infinite scroll is not inherently harmful. Autoplay is not inherently harmful. Algorithmic recommendations are not inherently harmful. These features only matter because of the content they deliver. The “addictive design” does nothing without the underlying user-generated content that makes people want to keep scrolling.
As Eric Goldman pointed out in his response to the verdicts:
The lower court rejected Section 230’s application to large parts of the plaintiffs’ case, holding that the claims sought to impose liability on how social media services configured their offerings and not third-party content. But social media’s offerings consist of third-party content, and the configurations were publishers’ editorial decisions about how to present it. So the line between first-party “design” choices and publication decisions about third-party content seems illusory to me.
If every editorial decision about how to present third-party content is now a “design choice” subject to product liability, Section 230 protects effectively nothing. Every website makes decisions about how to display user content. Every search engine ranks results. Every email provider filters spam. Every forum has a sorting algorithm, even if it’s just “newest first.” All of those are “design choices” that could, theoretically, be blamed for some downstream harm.
The whole point of Section 230 was to keep platforms from being held liable for harms that flow from user-generated content. The “design” theory accomplishes exactly what 230 was meant to prevent — it just uses different words to get there.
Bad defendants make bad law. Meta is unsympathetic. It’s understandable why they get so much hate. It’s understandable why people (including those on juries) are willing to accept legal theories against them that would be obviously problematic if applied to anyone else. But legal precedent doesn’t care about your feelings toward the defendant. What works against Meta works against everyone.
If this all sounds familiar, it should. This is almost exactly the legal landscape that existed before Section 230 was passed in 1996, and the reason Congress felt it needed to act.
In the early 1990s, Prodigy ran an online service with message boards and made the decision to moderate them to create a more “family-friendly” environment. In the resulting lawsuit, Stratton Oakmont v. Prodigy, the court ruled that because Prodigy had made editorial choices about what to allow, it was acting as a publisher and could therefore be held liable for everything users posted that it failed to catch.
The perverse incentive was obvious: moderate, and you’re on the hook for everything you miss. Don’t moderate at all, and you’re safer. Congress recognized that this was insane — it punished companies for trying to do the right thing — and passed Section 230 to fix it. The law explicitly said that platforms could moderate content without being treated as the publisher or speaker of that content. And, as multiple courts rightly decided, this was designed to apply to all publisher activity of a platform — every editorial decision, every way to display content. The whole point was to allow online services and users to feel free to make decisions regarding other people’s content, including how to display it, without facing liability for that content.
And a critical but often overlooked function of Section 230 is that it provides a procedural shield: it lets platforms get baseless lawsuits dismissed early, before the ruinous costs of discovery and trial.
These two verdicts effectively bring us back to Stratton Oakmont territory through the back door. By recharacterizing platform liability as “product design” liability rather than content liability, plaintiffs’ lawyers have found a way to nullify Section 230 without anyone having to vote to repeal it. Every design decision — moderation algorithms, recommendation systems, notification settings, even the order in which posts appear — can now be characterized by some lawyer as a “defective product” rather than an editorial choice about third-party content.
Except this time, instead of people being horrified by the implications, they’re cheering.
The dollar amounts in these cases tell an interesting story if you pay attention. The California jury awarded $6 million total — $4.2 million from Meta, $1.8 million from YouTube. For companies that bring in tens of billions in quarterly revenue, that’s effectively nothing. It’s not even a slap on the wrist. Meta will barely notice.
But that’s exactly the problem. The real cost here is the process. The California trial lasted six weeks. The New Mexico trial lasted nearly seven. Both involved extensive discovery, depositions of top executives including Zuckerberg himself, production of enormous volumes of internal documents, and armies of lawyers on both sides.
Meta can afford that. Google can afford that. You know who can’t? Basically everyone else who runs a platform where users post things.
And this is already happening. TikTok and Snap were also named as defendants in the California case. They both settled before trial — not because they necessarily thought they’d lose on the merits, but because the cost of fighting through a multi-week jury trial can be staggering. If companies the size of TikTok and Snap can’t stomach the expense, imagine what this means for mid-size platforms, small forums, or individual website operators.
The California case is just the first of multiple “bellwether” trials scheduled in the near future. Hundreds of federal cases are lined up behind those. There are over 1,600 plaintiffs in the consolidated California litigation alone. As Goldman noted:
Together, these rulings indicate that juries are willing to impose major liability on social media providers based on claims of social media addiction. That liability exposure jeopardizes the entire social media industry. There are thousands of other plaintiffs with pending claims; and with potentially millions of dollars at stake for each victim, many more will emerge. The total amount of damages at issue could be many tens of billions of dollars.
This is the Stratton Oakmont problem all over again, but worse. At least in 1995, only companies that moderated faced liability. Now, any company that makes any “design choice” about how to present user content — which is to say, literally every platform on the internet — is potentially on the hook if any harm comes to any user which some lawyer can claim was because they used that service. The lawsuit becomes a weapon regardless of outcome, because the cost of defending yourself is ruinous for anyone who isn’t a trillion-dollar company.
If the “design choices create liability” framework seems worrying in the abstract, the New Mexico case provides a concrete example of where it leads in practice.
One of the key pieces of evidence the New Mexico attorney general used against Meta was the company’s 2023 decision to add end-to-end encryption to Facebook Messenger. The argument went like this: predators used Messenger to groom minors and exchange child sexual abuse material. By encrypting those messages, Meta made it harder for law enforcement to access evidence of those crimes. Therefore, the encryption was a design choice that enabled harm.
The state is now seeking court-mandated changes including “protecting minors from encrypted communications that shield bad actors.”
Yes, the end result of the New Mexico ruling might be that Meta is ordered to make everyone’s communications less secure. That should be terrifying to everyone. Even those cheering on the verdict.
End-to-end encryption protects billions of people from surveillance, data breaches, authoritarian governments, stalkers, and domestic abusers. It’s one of the most important privacy and security tools ordinary people have. Every major security expert and civil liberties organization in the world has argued for stronger encryption, not weaker.
But under the “design liability” theory, implementing encryption becomes evidence of negligence, because a small number of bad actors also use encrypted communications. The logic applies to literally every communication tool ever invented. Predators also use the postal service, telephones, and in-person conversation. The encryption itself harms no one. Like infinite scroll and autoplay, it is inert without the choices of bad actors — choices made by people, not by the platform’s design.
The incentive this creates goes far beyond encryption, and it’s bad. If any product improvement that protects the majority of users can be held against you because a tiny fraction of bad actors exploit it, companies will simply stop making those improvements. Why add encryption if it becomes Exhibit A in a future lawsuit? Why implement any privacy-protective feature if a plaintiff’s lawyer will characterize it as “shielding bad actors”?
And it gets worse. Some of the most damaging evidence in both trials came from internal company documents where employees raised concerns about safety risks and discussed tradeoffs. These were played up in the media (and the courtroom) as “smoking guns.” But that means no company is going to allow anyone to raise concerns ever again. That’s very, very bad.
In a sane legal environment, you want companies to have these internal debates. You want engineers and safety teams to flag potential risks, wrestle with difficult tradeoffs, and document their reasoning. But when those good-faith deliberations become plaintiff’s exhibits presented to a jury as proof that “they knew and did it anyway,” the rational corporate response is to stop putting anything in writing. Stop doing risk assessments. Stop asking hard questions internally.
The lesson every general counsel in Silicon Valley is learning right now: ignorance is safer than inquiry. That makes everyone less safe, not more.
We also need to talk about the actual evidence of harm in these cases, because it’s thinner than most people realize.
The California plaintiff, known as KGM, testified that she began using YouTube at age 6 and Instagram at age 9, and that her social media use caused depression, self-harm, body dysmorphic disorder, and social phobia. Those are real and serious harms that genuinely happened to a real person, and no one should minimize her suffering.
But as Goldman noted:
KGM’s life was full of trauma. The social media defendants argued that the harms she suffered were due to that trauma and not her social media usage. (Indeed, there was some evidence that social media helped KGM cope with her trauma). It is highly likely that most or all of the other plaintiffs in the social media addiction cases have sources of trauma in their lives that might negate the responsibility of social media.
The jury was asked whether the companies’ negligence was “a substantial factor” in causing harm. Not the factor. Not the primary factor. A substantial factor.
This standard is doing enormous work here, and nobody in the coverage seems to be paying attention to it. In most product liability cases, causation is relatively straightforward: the car’s brakes failed, the car crashed, the plaintiff was injured. You can trace a mechanical chain of events. There needs to be a clear causal chain between the product and the harm.
But what’s the equivalent chain here? The plaintiff scrolled Instagram, saw content that made her feel bad about her body, developed body dysmorphic disorder? Which content? Which scroll session? How do you isolate the “design” from the specific posts she saw, the comments she read, the accounts she followed?
With a standard that loose, applied to a teenager with multiple documented sources of trauma in her life, how do you disentangle what was caused by social media and what was caused by everything else? The honest answer is: you can’t. And neither could the jury, not with any scientific rigor. They made a judgment call based on vibes and sympathy — which is what juries do, but it’s a terrifying foundation for reshaping internet law.
The research on social media’s causal relationship to teen mental health problems is incredibly weak. Over and over and over again researchers have tried to find a causal link. And failed. Every time.
Lots of people (including related to both these cases) keep comparing social media to things like cigarettes or lead paint. But, as we’ve discussed, that’s a horrible comparison. Cigarettes cause cancer regardless of what else is happening in a smoker’s life. Lead paint causes neurological damage regardless of a child’s home environment. Social media is not like that. The relationship between social media use and mental health outcomes is complex, highly individual, and mediated by dozens of confounding factors that researchers are still trying to untangle.
And, also, neither cigarettes nor lead paint are speech. The issues involving social media are all about speech. And yes, speech can be powerful. It can both delight and offend. It can make people feel wonderful or horrible. But we protect speech, in part, because it’s so powerful.
But a jury doesn’t need to untangle those factors. A jury just needs to feel that a sympathetic plaintiff was harmed and that a deeply unsympathetic defendant probably had something to do with it. And when the defendant is Mark Zuckerberg, that’s a very easy emotional call to make. Which is exactly why this is so dangerous as precedent. If “a substantial factor” is the standard, and the defendant’s internal documents showing employees discussing concerns about safety count as proof of wrongdoing, then essentially any plaintiff who used social media and experienced mental health difficulties has a viable lawsuit. Multiply that by every teenager in America and you start to see the scale of the problem.
Then recognize that this applies to everything on the internet, not just the companies you hate. A Discord server for a gaming community uses a bot to surface active conversations — design choice. A small forum for chronic illness patients sends email notifications when someone replies to your post — design choice. A blog lets readers comment on articles and notifies writers when they do — design choice. A local news site has a comments section that displays newest-first — design choice. Every one of these could theoretically be characterized as “features that increase engagement” and therefore potential vectors of liability.
And the claims of “addiction” are even worse. As we’ve discussed, studies show very little support for the idea that “social media addiction” is a real thing, but many people believe it is. But it’s not difficult for a lawyer to turn anything that makes people want to use a service more into a claimed “addictive” feature. Oh, that forum has added gifs? That makes people use it more! Sue!
Yes, some of these may sound crazy, but lawyers are going to start suing everyone, and the sites you like are going to be doing everything they can to appease them, which will involve making services way worse.
There’s also something that got zero attention in either trial: the people for whom social media is genuinely, meaningfully beneficial.
Goldman’s observation on this deserves to be read carefully:
Due to the legal pressure from the jury verdicts and the enacted and pending legislation, the social media industry faces existential legal liability and inevitably will need to reconfigure their core offerings if they can’t get broad-based relief on appeal. While any reconfiguration of social media offerings may help some victims, the changes will almost certainly harm many other communities that rely upon and derive important benefits from social media today. Those other communities didn’t have any voice in the trial; and their voices are at risk of being silenced on social media as well.
LGBTQ+ teenagers in hostile communities who find support and connection online. People with rare diseases who find communities of fellow patients. Activists in authoritarian countries who use social media to organize. Artists and creators who built careers on these platforms. People with disabilities who rely on social media as their primary social outlet. None of them were in that courtroom. None of them had a voice in the proceedings that will reshape the platforms they depend on.
When platforms are forced to “reconfigure their core offerings” to reduce liability — which could mean anything from removing algorithmic recommendations to eliminating features that enable connection and discovery — the costs won’t fall evenly. Meta and Google will survive. They’ll make their products blander, less useful, and more locked down. It’s the users who relied on those features who will pay the price.
Both Meta and YouTube have said they will appeal, and they have plausible grounds. The product liability theory applied to what are fundamentally speech platforms raises serious First Amendment questions. The Section 230 issue — whether “design choices” about presenting third-party content are really just editorial decisions that 230 was designed to protect — will almost certainly get a serious look from appellate courts. The causation questions are genuinely unresolved.
But appeals take years. In the meantime, every plaintiffs’ attorney in America now has a proven template for suing any social media platform. The bellwether structure means more trials are already scheduled — the next California state court one is in July, with a similar federal case starting in June. The litigation flood has started, and 230’s procedural protection — the ability to get these cases dismissed before they become multi-million-dollar ordeals — has already been neutralized.
Goldman is right to frame this as existential:
There are thousands of other plaintiffs with pending claims; and with potentially millions of dollars at stake for each victim, many more will emerge. The total amount of damages at issue could be many tens of billions of dollars.
None of this means the harms kids face don’t deserve serious attention. They do. There are ways to address legitimate concerns about teen mental health that don’t require treating every editorial decision about third-party content as a defective product — but they involve hard, unglamorous work, like actually funding mental health care for young people.
But suing Meta is more fun!
Meta can absorb tens of billions. But this legal theory doesn’t apply only to Meta. It applies to every platform that makes “design choices” about how to present content — which again, is every platform. The next wave of lawsuits won’t just target trillion-dollar companies. They’ll target anyone with a recommendation algorithm, a notification system, or an infinite scroll feature, which in 2025 is basically everyone.
We got Section 230 because Congress looked at the Stratton Oakmont decision and realized the legal system had created a set of incentives that would destroy the open internet. The incentive now is arguably worse: not just “don’t moderate” but “don’t build anything that makes user-generated content engaging, discoverable, or easy to access, because if someone is harmed by that content, the way you presented it makes you liable.”
I get why people are cheering. Meta is a bad company that has made bad choices and treated its users badly. Zuckerberg has earned most of the contempt coming his way. Kids have been genuinely harmed, and the instinct to want someone powerful to be held accountable is about as human as it gets.
But bad defendants make bad law. And the law being made here — that platforms are liable for the “design” of how they present the third-party content that is their entire reason for existing — will not stay confined to companies you don’t like. It will be used against every website, every app, every platform, every small operator who ever made a choice about how to display user-generated content. It will make Section 230 a dead letter without anyone having to vote to repeal it. It will create a legal environment where only the largest companies can afford to operate, because only they can absorb the cost of endless litigation.
What you won’t get out of this is anything approaching “accountability.” You’ll get overly lawyered-up systems that prevent you from doing useful things online, and eventually the end of the open internet — cheered on by people who think they’re punishing a bully but are actually handing the bully’s biggest competitors a death sentence.
Filed Under: harms, jury verdicts, kids, section 230, social media, social media addiction
Companies: google, meta, youtube
Last month, Mike participated in the Cato Institute‘s Section 230 at 30 event to mark the 30th anniversary of the passage of Section 230. The event featured a series of fireside chats and panels that went deep on the past, present, and future of the all-important law, and you can watch videos of all of them on Cato’s website — but for this week’s episode of the podcast, we’ve got the audio of Mike’s panel (moderated by Jennifer Huddleston and also featuring Jess Miers, Matt Perault, and Matt Reeder), all about how Section 230 and similar policies will apply to new technologies like decentralized protocols and artificial intelligence.
You can also download this episode directly in MP3 format.
Follow the Techdirt Podcast on Soundcloud, subscribe via Apple Podcasts or Spotify, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.
Filed Under: cato, jennifer huddleston, jess miers, matt perault, matt reeder, podcast, section 230
The internet has been rightfully enjoying videos from the defamation trial against Afroman, a musician known for his humorous songs including “Because I got high.” The lawsuit involves songs he wrote about a 2022 raid police conducted on his house, which was based on flimsy evidence. The songs justifiably mock the officers involved. Mike Masnick wrote a recap of the case here, which is worth reading for many reasons, but the songs and Afroman’s testimony are true highlights.
After the raid, Afroman released his songs on YouTube and they went viral initially on TikTok, both massive platforms for users to share their speech and that of other users. The officers who raided his home, seeking to silence someone making fun of them, sued Afroman for defamation, emotional distress, and other causes in 2023.
Spoiler: Afroman won. The songs are not defamatory. But we didn’t know that for sure until a jury told us so this week. For three years, from the moment the lawsuit was filed until the jury issued its verdict, the songs were allegedly defamatory. And their continued “publication” ran the risk of liability.
So why could we still see the songs on YouTube, TikTok, Bluesky, and whatever other online platforms where we first encountered them? One big reason is Section 230 of the Communications Decency Act.
Section 230 says that interactive computer service providers, like online platforms, cannot be treated as the publisher or speaker of information content provided by other information content providers. That means that YouTube could not be liable for the content of Afroman’s songs, even if they were defamatory. That’s the balance Section 230 strikes. Under 230, there is still accountability for the speaker, but online platforms are not liable for their users’ illegal speech.
By and large this balance has been incredibly beneficial to free expression online, supporting speech about everything from the profoundly consequential (#MeToo and Black Lives Matter) to the somewhat silly (a song about a cop who got distracted from a raid by a delicious looking “Lemon Pound Cake”). But now, members of Congress like Senator Lindsey Graham and Senator Dick Durbin want to repeal or replace Section 230 without much of a plan for what comes next.
On March 18, Daphne Keller, a professor of law at Stanford and expert in intermediary liability laws around the world, testified before the Senate Commerce Committee. She tried to explain to the Senators that Section 230 may not be perfect, but it’s still better than any of the options she has seen. To understand why Daphne’s right, let’s think about what Afroman’s case might have looked like without Section 230. The moment Afroman was allowed to distribute his songs about the raid on YouTube, the company could have been liable for any potentially illegal speech they contained. That means YouTube probably also would have been a co-defendant in the cops’ suit. At the scale many online platforms operate at, these kinds of accusations of defamation and lawsuits related to user posts would happen hundreds of thousands, if not millions, of times a day.
That’s a lot of litigation.
Staring down the barrel of that many potential lawsuits every day, no reasonable platform would have allowed Afroman’s speech to stay up. The moment an accusation of illegality surfaced, a platform acting reasonably would likely take the speech down. And to be clear, we have evidence that this is how they would react: That’s the incentive structure currently in place under the Digital Millenium Copyright Act (DMCA). The DMCA creates a notice and takedown system for alleged copyright violations and evidence suggests that improper takedown requests are common and, even with the safeguards for speech built into that law, result in over-censorship. Replicating a version of the DMCA for all content on the internet writ large would likely produce the same overcensorship result. At a minimum, the platforms certainly wouldn’t allow their algorithms to recommend posts linking to the defamatory songs, effectively “shadowbanning” them, which is probably one of the main ways many people came across the songs to begin with.
The upshot is: Section 230 created the conditions that allowed us to hear Afroman’s songs, and allowed platforms to recommend them, even while their status was in legal limbo.
There are millions of similar situations, large and small, every day where Section 230 ensures that online platforms do not have to try to make context-specific legal judgment calls. Section 230 may not be perfect. No law is. But it’s the best and most effective protection for free expression online we have, allowing online services to simply let their users speak. Congress should be very cautious about changing it, let alone eliminating it altogether.
Kate Ruane is the Director of the Free Expression Program and the Center for Democracy & Technology, where she advocates for the protection of free speech and human rights in the digital age.
Filed Under: afroman, defamation, intermiediaries, section 230
Section 230 remains one of the most misunderstood laws in America, and that misunderstanding keeps producing policy proposals that would make the internet worse, not better. Last year, I wrote about Section 230, and this week Sam Seder brought us both onto The Majority Report for over an hour.
The format was conversational rather than structured, which means some points didn’t get as cleanly laid out as they would in a written piece. But the back-and-forth surfaced some of the real underlying disagreements about what people think 230 does versus what it actually does, and I think that makes it worth the watch. The discussion kicks off around the 30-minute mark.
Thanks to Sam and Emma for having me on, and to Brian for the discussion.
I stand by the larger point I keep trying to make: even if I agree that there are elements of the present internet I dislike, removing or reforming Section 230 will almost certainly make all of those things worse, not better. Without 230’s protections, the compliance costs alone would further entrench the biggest platforms while crushing any smaller competitor or new entrant that might actually offer users something better. People overindex on 230 as “the cause” of everything bad online, when it’s not what’s actually responsible—and that misdiagnosis leads to policy proposals that would deepen the very problems they claim to solve. It still strikes me as odd that 230 is the one law everyone is fixated on when there are far more deserving targets: the CFAA, the DMCA, patent law, and the continued absence of meaningful privacy legislation.
Filed Under: brian reed, majority report, sam seder, section 230
We’ve been writing about Section 230 for a very long time. We’ve written about why it matters, why the people attacking it are wrong, and why most of the proposed “reforms” would make the internet dramatically worse for everyone except the already powerful. And for just about as long as we’ve been doing that, Senator Ron Wyden—who co-authored Section 230 three decades ago—has been doing the same thing, often as a lonely voice in a Senate full of colleagues who either don’t understand the law or are actively trying to destroy it.
The Communications Decency Act just turned 30, and Wyden marked the occasion with an op-ed in MSNow that lays out, clearly and forcefully, why Section 230 matters more right now than it has in years. And the piece is a must-read, because it highlights something that should be blindingly obvious to Democrats in Congress but apparently remains invisible to far too many of them: gutting Section 230 while Donald Trump is president would be handing him the pen to rewrite the rules of online speech.
As President Donald Trump and his administration wage war against free speech, it is vital that Americans have a free and open internet where they can criticize the government, share personal health information and simply live their lives without government censorship and repression. For those of us who value the ability for regular people to speak and be heard online, preserving Section 230 is one of the most consequential ways to prevent Trump and the cabal of MAGA billionaires from controlling everything Americans see and read.
You’d think this would be uncontroversial among Democrats. You’d think that watching the Trump administration wage open war on free expression—retaliating against media companies, threatening platforms, unleashing threats from federal agencies on critics—would make it crystal clear that now is not the time to blow up the legal framework that protects people’s ability to speak freely online.
And yet…
Senator Dick Durbin, a Democrat, is still co-sponsoring legislation with Lindsey Graham to repeal Section 230 entirely within two years. This is beyond absurd. A senior Democratic senator is actively working to hand this administration the ability to reshape online speech liability from scratch.
In what universe does that end well?
If you need a refresher on what these senators are proposing to gut, Wyden lays it out plainly:
Section 230 is a simple law: In effect, it says the person who creates a post is the one responsible for it. Without it, goodbye retweets and reskeets, Reddit mods, Wikipedia editors and the people curating feeds on Bluesky. The ability to rapidly reshare information online is only possible because of the law.
That’s it. That’s what they want to hand Trump the power to rewrite.
And it gets worse.
Wyden highlights a category of proposal that perfectly encapsulates why building government censorship tools “for the right reasons” always backfires:
Other proposals include repealing Section 230 for posts the Health and Human Services secretary decides are medical misinformation. This was introduced in 2021 in response to the proliferation of COVID-19 misinformation, but today it would essentially give HHS Secretary Robert F. Kennedy the power to silence critics of his anti-vaccine agenda.
You might recall this one if you’re a regular Techdirt reader. Introduced by Democratic Senators Amy Klobuchar and Ben Ray Lujan, we called out how dangerous (and unconstitutional) it was back in 2021, and then reminded Senators Klobuchar and Lujan of this when RFK Jr. was first nominated to head HHS.
As Wyden notes, a bill written and supported by Democrats, designed to combat COVID misinformation by “reforming” Section 230, if it were law, would now hand Robert F. Kennedy Jr.—the most prominent anti-vaccine activist in American public life—the authority to define what constitutes medical “misinformation” online.
The person who has spent decades spreading conspiracy theories about vaccines would get to decide which health speech is acceptable on the internet. This is exactly the kind of scenario that people like us (and Wyden) have been warning about for years: the regulatory environment you create to fight the speech you don’t like today will be wielded by the people you trust least tomorrow.
Democrats like Durbin, Klobuchar, and Blumenthal spent years convinced that weakening Section 230 would force Big Tech to clean up its act. The counterargument—made by Wyden, by us, by basically everyone who actually read the law—was always the same: any power you create to shape online speech rules will eventually be used by people whose priorities look nothing like yours. That day has arrived. Those same Democrats are somehow still pushing the same bills.
So what would actually happen if they got their way? Nothing good. Wyden points to how Americans have been using platforms to document what’s actually happening with immigration enforcement:
Americans have used WhatsApp, Signal, Bluesky and TikTok to document violent, lawless activities by Immigration Customs Enforcement and Customs and Border Protection across the country. While corporate news organizations like CBS News about Trump administration immigration abuses and are increasingly pushing disingenuous “both sides” reporting, regular Americans have helped to change public opinion with their first-hand videos of government-sanctioned violence that have spread across the internet.
That was possible because of Section 230. Take it away and you would see ICE agents bring bad faith lawsuits against those platforms, perhaps claiming that Meta helped incite anti-ICE protests or defamed them by carrying posts alleging excessive force. To understand what would be possible, just look at how and have used civil suits to try and silence their biggest critics.
This is the part that the “repeal 230” crowd never seems to grapple with. Without Section 230, the platforms hosting that content become legally vulnerable for the content their users post. And the people with the deepest pockets and the most to hide—government agencies, corporations, the powerful—are exactly the ones who would use that vulnerability to silence critics through litigation. We’ve talked about this for years. It wouldn’t be Big Tech that suffers from a 230 repeal. Big Tech can afford armies of lawyers. The people who get crushed are the small platforms, the community forums, the individual users who share and reshare information that the powerful would prefer stayed hidden.
Wyden drives this home with another relevant example:
Or look at the Jeffrey Epstein case. It took by the Miami Herald and activism from Epstein’s victims to keep the story alive. But without Section 230, anyone who merely shared a story or allegation about Epstein and his associates on their social media could be sued by Epstein’s deep-pocketed pals, along with the site that hosted those posts.
He also takes a moment to push back on the persistent myth that Section 230 gives Big Tech blanket immunity to do whatever it wants—a myth that has fueled much of the bipartisan rage against the law:
Critics of Section 230 often misunderstand it. The statute only protects companies when a lawsuit tries to treat a company as the speaker of the post they find offensive or harmful.
However, courts can and have held companies liable for their own speech and business practices. For example, Amazon has tried and failed to use Section 230 to . Meta also tried and failed to use Section 230 to . And Big Tech is going to trial, after a California state court found that Section 230 .
(Wyden’s right that 230 isn’t the blanket immunity its critics claim—though where courts have drawn those lines remains hotly contested, and some of us would argue several of these rulings created more problems than they solved. In fact, the fallout from some of those rulings actually serves to show why Section 230 is so important.)
Either way, none of this should be new information, given how many times it’s been litigated and explained. But apparently it bears repeating every single time this debate comes up, because the same wrong arguments keep getting trotted out by the same people who refuse to read 26 words of statute.
Wyden closes with a warning that should be required reading for every legislator contemplating a 230 “reform” bill:
Opening up Section 230, especially right now, while Trump is president, would give him the pen to rewrite online speech rules. Given his administration’s attacks on free speech, I think that would be disastrous.
It says something profoundly depressing about the state of Congress that the guy who wrote the law 30 years ago is still the one who understands it best, and that he has to keep explaining it to colleagues who should know better. Wyden has been right about this from the start. He was right when Republicans attacked Section 230 because they wanted to force platforms to carry their content. He was right when Democrats attacked it because they wanted to force platforms to remove content they didn’t like. And he’s right now, when tearing it down would hand the most speech-hostile administration in modern memory the tools to reshape online expression however it sees fit.
Happy 30th birthday, Section 230. Here’s hoping your co-author can keep his colleagues from smothering you in your sleep.
Filed Under: amy klobuchar, dick durbin, donald trump, intermediary liability, ron wyden, section 230
If you’ve spent any time in my Section 230 myth-debunking guide, you know that most bad takes on the law come from people who haven’t read it. But lately I keep running into a different kind of bad take—one that often comes from people who have read the law, understand the basics passably well, and still say: “Sure, keep 230 as is, but carve out algorithmically recommended content.”
Unlike the usual nonsense, this one is often (though not always) offered in good faith. That makes it worth engaging with seriously.
It’s still wrong.
Let’s start with the basics: as we’ve described at great length, the real benefits of Section 230 are its procedural protections, which make it so that vexatious cases get tossed out at the earliest (i.e., cheapest) stage. That makes it possible for sites that host third party content to do so in a way that they won’t get sued out of existence any time anyone has a complaint about someone else’s content being on the site. This important distinction gets lost in almost every 230 debate, but it’s important. Because if the lawsuits that removing 230 protections would enable would still eventually win on First Amendment grounds, the only thing you’re doing in removing 230 protections is making lawsuits impossibly expensive for individuals and smaller providers, without doing any real damage to large companies, who can survive those lawsuits easily.
And that takes us to the key point: removing Section 230 for algorithmic recommendations would only lead to vexatious lawsuits that will fail.
But what about [specific bad thing]?
Before diving into the legal analysis, let’s engage with the strongest version of this argument. Proponents of carving out algorithmic recommendations typically aren’t imagining ordinary defamation suits. They’re worried about something more specific: cases where an algorithm itself arguably causes harm through its recommendation patterns—radicalization pipelines, engagement-driven amplification of dangerous content, recommendation systems that push vulnerable users toward self-harm.
The theory goes something like this: maybe the underlying content is protected speech, but the act of recommending it—especially when the algorithm was designed to maximize engagement and the company knew this could cause harm—should create liability, usually as some sort of “products liability” type complaint.
It’s a more sophisticated argument than “platforms are publishers.” But it still fails, for reasons I’ll explain below. The short version: a recommendation is an opinion, opinions are protected speech, and the First Amendment doesn’t carve out “opinions expressed via algorithm” as a special category.
A short history of algorithmic feeds
To understand why removing 230 from algorithmic recommendations would be such a mistake, it helps to remember the apparently forgotten history of how we got here. In the pre-social media 2000s, “information overload” was the panic of the moment. Much of the discussion centered on the “new” technology of RSS feeds, and there were plenty of articles decrying too much information flooding into our feed readers. People weren’t worried about algorithms—they were desperate for them. Articles breathlessly anticipated magical new filtering systems that might finally surface what you actually wanted to see.
The most prominent example was Netflix, back when it was still shipping DVDs. Because there were so many movies you could rent, Netflix built one of the first truly useful recommendation algorithms—one that would take your rental history and suggest things you might like. The entire internet now looks like that, but in the mid-2000s, this was revolutionary.
Netflix’s approach was so novel that they famously offered $1 million to anyone who could improve their algorithm by 10%. We followed that contest for years as it twisted and turned until a winner was finally announced in 2009. Incredibly, Netflix never actually implemented the winning algorithm—but the broader lesson was clear: recommendation algorithms were valuable, and people wanted them.
As social media grew, the “information overload” panic of the blog+RSS era faded, precisely because platforms added recommendation algorithms to surface content users were most likely to enjoy. The algorithms weren’t imposed on users against their will—they were the answer to users’ prayers.
Public opinion only seemed to shift on “algorithms” after Donald Trump was elected in 2016. Many people wanted something to blame, and “social media algorithms” was a convenient excuse.
Algorithmic feeds: good or bad?
Many people claim they just want a chronological feed, but studies consistently show the vast majority of people prefer algorithmic recommendations, because they surface more of what users actually want, compared to chronological feeds.
That said, it’s not as simple as “algorithms good.” There’s evidence that algorithms optimized purely for engagement can push emotionally charged political content that users don’t actually want (something Elon Musk might take notice of). But there’s also evidence that chronological feeds expose users to more untrustworthy content, because algorithms often filter out garbage.
So, algorithms can be good or bad depending on what they’re optimized for and who controls them. That’s the real question: will any given regulatory approach give more power to users, to companies, or to the government?
Keep that frame in mind. Because removing 230 protections for algorithmic recommendations shifts power away from users and toward incumbents and litigants.
The First Amendment still exists
As mentioned up top, the real role of Section 230 is providing a procedural benefit to get vexatious lawsuits tossed well before (and at much lower cost) they would get tossed anyway, under the First Amendment. With Section 230, you can get a case dismissed for somewhere in the range of $50k to $100k (maybe up to $250k with appeals and such). If you have to rely on the First Amendment, it’s up in the millions of dollars (probably $5 to $10 million).
And, the crux of this is that any online service sued over an algorithmic recommendation, even for something horrible, would almost certainly win on First Amendment grounds.
Because here’s the key point: a recommendation feed is a website’s opinion of what they think you want to see. And an opinion is protected speech. Even if you think it’s a bad or dangerous opinion. One thing that the US has been pretty clear on is that opinions are protected speech.
Saying that an internet service can be held liable for giving its opinion on “what we think you’d like to see” would be earth shatteringly problematic. As partly discussed above, the modern internet today relies heavily on algorithms recommending stuff, giving opinions. Every search result is just that, an opinion.
This is why the “algorithms are different” argument fails. Yes, there’s a computer involved. Yes, the recommendation emerges from machine learning rather than a human editor’s conscious decision. But the output is still an expression of judgment: “Based on what we know, we think you’ll want to see this.” That’s an opinion. The First Amendment doesn’t distinguish between opinions formed by editorial meetings and opinions formed by trained models.
In the earlier internet era, there were companies that sued Google because they didn’t like how their own sites appeared (or didn’t appear) in Google search results. The E-Ventures v. Google case here is instructive. Google determined that E-Venture’s “SEO” techniques were spammy, and de-indexed all its sites. E-Ventures sued. Google (rightly) raised a 230 defense which (surprisingly!) a court rejected.
But the case went on longer, and after lots more money on lawyers was spent, Google did prevail on First Amendment grounds.
This is exactly what we’re discussing here. Google search ranking is an algorithmic recommendation engine, and in this one case a court (initially) rejected a 230 defense, causing everyone to spend more money… to get to the same basic result in the long run. The First Amendment protects a website using algorithms to express an opinion over what it thinks you’ll want… or not want.
Who has agency?
This brings us back to the steelman argument I mentioned above: what about cases where an algorithm recommends something genuinely dangerous?
Our legal system has a clear answer, and it’s grounded in agency. A recommendation feed is not hypnotic. If an algorithm surfaces content suggesting you do something illegal or dangerous, you still have to make the choice to do the illegal or dangerous thing. The algorithm doesn’t control you. You have agency.
But there’s a stronger legal foundation here too. Courts have consistently found that recommending something dangerous is still protected by the First Amendment, particularly when the recommender lacks specific knowledge that what they’re recommending is harmful.
The Winter v. GP Putnam’s Sons case is instructive here. The publisher of a mushroom encyclopedia included recommendations to eat mushrooms that turned out to be poisonous—very dangerous! But the court found the publisher wasn’t liable because they didn’t have specific knowledge of the dangerous recommendation. And crucially, the court noted that the “gentle tug of the First Amendment” would block any “duty of care” that would require publishers to verify the safety of everything they publish:
The plaintiffs urge this court that the publisher had a duty to investigate the accuracy of The Encyclopedia of Mushrooms’ contents. We conclude that the defendants have no duty to investigate the accuracy of the contents of the books it publishes. A publisher may of course assume such a burden, but there is nothing inherent in the role of publisher or the surrounding legal doctrines to suggest that such a duty should be imposed on publishers. Indeed the cases uniformly refuse to impose such a duty. Were we tempted to create this duty, the gentle tug of the First Amendment and the values embodied therein would remind us of the social costs.
Now, I should acknowledge that Winter was a products liability case involving a physical book, not a defamation or tortious speech case involving an algorithm, but almost all of the current cases challenging social media are self-styled as product liability cases to try (usually without success) to avoid the First Amendment. And that’s all they would be regarding algorithms as well.
The underlying principle remains the same whether you call it a products liability case or one officially about speech: the First Amendment bars requirements that publishing intermediaries must “investigate” whether everything they distribute is accurate or safe. The reason is obvious—such liability would prevent all sorts of things from getting published in the first place, putting a massive damper on speech.
Apply that principle to algorithmic recommendations, and the answer is clear. If a book publisher can’t be required to verify that every mushroom recommendation is safe, a platform can’t be required to verify that every algorithmically surfaced piece of content won’t lead someone to harm.
The end result?
So what would it mean if we somehow “removed 230 from algorithmic recommendations”?
Practically, it means that if companies have to rely on the First Amendment to win these cases, only the biggest companies can afford to do so. The Googles and Metas of the world can absorb $5-10 million in litigation costs. For smaller companies, those costs are existential. They’d either exit the market entirely or become hyper-aggressive about blocking content at the first hint of legal threat—not because the content is harmful, but because they can’t afford to find out in court.
The end result would be that the First Amendment still protects algorithmic recommendations—but only for the very biggest companies that can afford to defend that speech in court.
That means less competition. Fewer services that can recommend content at all. More consolidation of power in the hands of incumbents who already dominate the market.
Remember the frame from earlier: does this give more power to users, companies, or the government? Removing 230 from algorithmic recommendations doesn’t empower users. It doesn’t make platforms more “responsible.” It just makes it vastly harder for anyone other than the giant platforms to exist while also giving more power to governments, like the one currently run by Donald Trump, to define what things an algorithm can, and cannot, recommend.
Rather than diminishing the power of billionaires and incumbents, this would massively entrench it. The people pushing for this carve-out often think they’re fighting Big Tech. In reality, they’re fighting to build Big Tech a new moat.
Filed Under: 1st amendment, algorithmic feeds, algorithmic recommendations, algorithms, feeds, free speech, opinion, section 230
Read the latest posts:
