Lawsuits Targeting Social Media Are an Attack on Free Speech

The definition of a trade-off is “a balancing of factors all of which are not attainable at the same time.” We know there are no perfect choices in anything we do or buy. It’s like that old maxim about any service. There’s quality, speed, and price, but you can only pick two. In the realm of public policy, however, most people think they can have everything without any hard choices.

And so we arrive at the latest debates and legal verdicts about social media and technology. Almost all Americans are addicted, at some level, to smart phones, TV screens, and computers. Our lives have also been enhanced by them. I needn’t detail the immeasurable benefits—the endless information and entertainment that’s literally at our fingertips, or our ability to interact with others in ways that were previously unimaginable.

But there’s a dark side. I can’t manage to watch even the most engrossing movie without scrolling through my phone. Many young people spend more time on their phones than they do participating in healthy endeavors. Studies show some teens spend hours on their phones a day—and that the highest social-media users suffer most from alienation and depression.

As a society, we’re trying to work our way through this phenomenon. Depression among teens isn’t new. I spent more than my share of time as a teen wallowing in the usual adolescent misery—and that was before the personal computer and cellphones had been invented. So what do we do? The usual answers may seem quaint, but they remain the gold standard. Parents need to be involved in their kids’ lives. Individuals need to take responsibility for their actions and develop good habits.

Unfortunately, in modern America the answers often involve blaming the companies that sell us the technologies that we really like, turning to legislatures to regulate them, and then suing those companies for outcomes that aren’t really their fault. The issue is bipartisan. Conservatives and progressives sound remarkably alike as they concoct legislation and lawsuits to “protect the children” from ill-defined harms.

The latest news: A California jury awarded $6 million to a 20-year-old woman who has suffered psychological issues that her lawsuit (involving many plaintiffs) blamed in part on Google and Meta.  The day before, a New Mexico jury slammed Meta with a $375 million verdict, as it sided with prosecutors who said Facebook and Instagram violated the state’s consumer-protection laws by not providing enough safeguards against child online exploitation.

As NPR reported, the California jury “heard competing narratives about what role social media platforms played in the mental health struggles of Kaley, also identified as KGM. Now 20 years old, Kaley…said she first started using YouTube at 6 years old and Instagram when she was 11.” The plaintiffs argued the platforms were designed to keep teens addicted. The counter argument: The companies that create these apps can’t be blamed for the complex mental issues of everyone who might use them.

I’m a dad and grandad, so I’m sensitive to concerns about children’s mental-health struggles, but the latter argument is the right one. Social media can erode self-esteem, but it also provides valuable content. Studies also show social media provides incredible benefits for most teens in battling isolation, boosting writing, and providing access to information. Any new or old media platform can help make anyone feel happy or sad.

Americans accept far more brutal trade-offs, such as nearly 37,000 annual motor-vehicle deaths in exchange for our incredible mobility. We accept the ill effects of alcohol addiction not only because many Americans enjoy drinking, but because we learned a century ago about the futility of banning products the public strongly desires. Even under the most hysterical scenarios, the internet provides nowhere near those levels of carnage.

Thanks to the brilliance of our founding fathers, there are some areas where governments are strictly limited in their ability to consider trade-offs. The First Amendment—Congress shall make “no law…”—doesn’t allow lawmakers to restrict our speech and religious rights no matter what ill effects book-banners and atheists might raise.

This is where these verdicts are troubling, as they “will compel social media companies to restrict access to and features on their platforms in a way that would be unconstitutional if mandated directly by legislation,” as my R Street Institute colleague and tech expert, Josh Withrow, eloquently puts it. They serve as a work-around to federal Section 230 regulations that protect online platforms from liability.

There are an estimated 1,600 lawsuits awaiting—and it’s not clear what tech companies could do to protect every user from every scenario short of restricting public access to their services. I don’t want to sound callous, but when balancing the trade-off between allowing Americans the freedom to use whatever platform they want and the alternative, I’m all for the former.

This column was first published in The Orange County Register.