Holding social media companies liable violates the First Amendment | Opinion

The recent jury verdicts against the social media companies Google and Meta violate the First Amendment. However unpopular such companies are at the moment, they are being held liable for their speech and that is unconstitutional. Moreover, federal law is clear that internet companies cannot be held civilly liable for speech on their platforms.

On Wednesday, March 25, a jury in Los Angeles ruled against Google and Meta and imposed $6 million in damages. They were found negligent for designing addictive algorithms and features that harmed a 20-year-old plaintiff. It is the first jury verdict in the United States to hold social media companies liable for design-based addictive harm to children, potentially setting a precedent for hundreds of similar lawsuits.

The day before, a jury in New Mexico ordered Meta to pay $375 million after finding the company misled users about the safety of its products for young users and enabled the sexual exploitation of children on its platforms.

These are cases that never should have been presented to a jury because the law precludes such damage awards. The courts of appeals and ultimately the Supreme Court should find that such liability for speech is impermissible. With over 2,500 similar lawsuits pending against social media companies, and more certain to be filed after these verdicts, it is essential that the appellate courts quickly put an end to this litigation.

The central claim of these lawsuits is that social media companies designed their platforms to be addictive and have users — including children — remain on them and return to them. But all media do exactly this. Video games are structured to keep people playing. Television series and novels use cliffhangers so people will keep watching and reading. All of these are designed to be “addictive.”

Those who have brought and championed the lawsuits against the social media companies analogize their cases to ones that held tobacco companies liable for designing an addictive product. But this analogy fails for a simple reason: Social media companies are being held liable for their speech, which is protected by the First Amendment, while tobacco companies were not exercising a constitutional right.

The plaintiffs in these lawsuits argued that companies design algorithms that are tailored to individual users to keep them hooked. But algorithms are themselves speech, and there is no reason to treat this speech differently from the code that encourages people to keep playing video games.

As Supreme Court Justice Elena Kagan said in an opinion in 2024: “The First Amendment ... does not go on leave when social media are involved.”

This is not the first time that the issue has arisen over whether the government can regulate a new form of communication to protect children from harm. In Brown v. Entertainment Merchants Association (2012), the Supreme Court declared unconstitutional a California law that made it a crime to sell or rent violent video games to minors under 18 without parental consent. California argued that playing interactive violent video games has a harmful effect on children and makes them more prone to commit acts of violence.

The Supreme Court, though, rejected this argument and stressed the heavy burden of proving causation that must be met in regulating speech. The late Supreme Court Justice Antonin Scalia, writing for the majority, concluded: “The State’s evidence is not compelling. . . . They show at best some correlation between exposure to violent entertainment and minuscule real-world effects, such as children’s feeling more aggressive or making louder noises in the few minutes after playing a violent game than after playing a nonviolent game.”

The court said that the government could not possibly prove the causation necessary to hold video game companies liable for their content. The same, of course, is true of internet and social media companies.

Civil liability for the social media platforms also violates a federal statute, Section 230 of the Communication Decency Act. That law provides that internet platforms cannot be held liable for the speech they allow or for what they remove. This provision has been essential for the development of the internet and social media as the most important tools for communication since the invention of the printing press.

The plaintiffs argued that Section 230 did not bar liability because the companies harmed young users through decisions they made about the platforms’ design rather than the content itself. But this is a distinction without a difference because it is the speech within the design that keeps users wanting to remain and return to the platforms. Every aspect of the design is speech. It is entirely the speech on the platforms that is the basis for holding the companies liable.

I do not mean to praise social media companies and the choices that they have sometimes made. There is reason to be concerned about studies showing that social media use is correlated to depression, low self-esteem and bullying. There needs to be more thought as to how to protect children — just as has been done over time for movies or video games — without violating the First Amendment.

But the solution is not holding social media companies liable for their speech. The jury verdicts should be overturned on appeal and the Supreme Court should stop such suits.

Erwin Chemerinsky is dean and professor of law at the UC Berkeley School of Law.