A jury in California has found that Meta, which owns Facebook and Instagram, and Google, which owns YouTube, are responsible for the depression and suicidal ideation of a woman named “Kaley” who obsessively used their services when she was a child. Together, the jury decided, Meta and Google must pay $6 million in damages.
Under what law was this case brought? Ay, there’s the rub. The plaintiff’s lawyers managed to sidestep the protections for these platforms contained in Section 230 of the Communications Decency Act by arguing not that the content on Facebook and YouTube was to blame, but that the mechanisms by which that content was delivered were knowingly contrived to addict users, including children. Speaking after the decision, the lead attorney described the result as “a referendum” and proposed that “for years, social media companies have profited from targeting children while concealing their addictive and dangerous design features.”
This is too clever by half. We do not doubt that social media can be toxic for children — and for some adults. But for a court to place the liability on those who facilitate the speech that appears online, rather than on those who write or utter it, is ultimately to route the complaint to the wrong place. Facebook and YouTube are conduits. If, indeed, their products are addictive, that is because they are exhibiting other people’s irresistible content. If Congress wishes, it could leave those conduits open to lawsuits such as these. But, in the 1990s, it did precisely the opposite. Since that time, it has passed no laws altering its decision, nor has it removed its protections where children are involved. In their case, the plaintiff’s lawyers made a big deal out of the fact that their client was a minor when the alleged harm was done. But, while perhaps emotionally resonant, it is irrelevant under current federal law.
In many press reports, this case has been compared to the litigation against Big Tobacco that culminated in the late ’90s. But, arguably, it is more like the many lawsuits that were filed against the manufacturers of firearms that, in 2005, prompted a bipartisan Congress to pass the Protection of Lawful Commerce in Arms Act. Having become frustrated by their inability to get their desired gun-control laws enshrined in statute at either the federal or state levels, many activists took to the courts and attempted to get judges and juries to do what their legislators would not: declare that the legal products that were being sold by legal traders were so intrinsically dangerous that they must be banned under common law. That, too, was cast by the lawyers involved as a “referendum.” A better description, though, was “an end run around the American order.”
The effect of social media on our culture remains a question that can be debated in good faith. But those debates — which are, by definition, political — are the preserve of our legislatures and our Constitution, rather than our courts. In California, a jury sought to take that power away. Congress, the states, and the People ought to take it back.