NY Orders Apps To Lie About Social Media ‘Addiction,’ Will Lose In Court

from the compelled-speech-101 dept

New York Governor Kathy Hochul just signed a law that’s going to get expensive fast. The state’s new social media labeling requirement—S4505, courtesy of state Senator Andrew Gounardes—forces websites to slap unscientific warnings on their services claiming that features like algorithmic feeds and push notifications cause addiction.

It’s compelled speech based on contested science, which means it’s blatantly unconstitutional, and courts have already rejected nearly identical schemes. But Hochul and Gounardes either don’t care or don’t understand First Amendment basics, so New York taxpayers are about to fund a losing legal battle whose only real purpose is generating headlines for those politicians pretending to care about “protecting the children.”

(For those keeping track: Gounardes has a track record of pushing unconstitutional anti-internet legislation, and when constituents call him out on it, he tells them they’re just parroting “big tech” talking points. Several of his constituents have forwarded me these dismissive responses. Engaging on substance apparently isn’t part of his process.)

We had warned New York officials that this law was unconstitutional, but Hochul and Gounardes clearly don’t care.

The law targets any site with algorithmic feeds, push notifications, infinite scroll, like counts, or autoplay—basically every modern website—and demands they post warnings claiming these features are addictive. This isn’t based on scientific consensus. It’s based on misreading correlational studies and pretending they show causation.

Hell, even with Texas’s law regarding porn which went to the Supreme Court over its age verification requirements, every court along the way outright rejected the required labeling with unscientific warnings about how porn is unhealthy. Not just the lower court, but the Fifth Circuit, which seems quite willing in other circumstances to go along with anti-internet nonsense. While the Fifth Circuit’s ruling in the case was extremely problematic on other grounds, even it wouldn’t go so far as to say that the government can force websites to label their services based on made up, unsubstantiated claims of “public health.”

Throughout that ruling, the normally censorial Fifth Circuit highlights that the consensus on such public health warnings for pornography are way too contested to require getting around the First Amendment’s prohibition on compelled speech around health warnings:

We are not scientific journal editors, much less social scientists, behavioral experts, or neurologists. The courts generally are not the place to hash out scientific debate, particularly not on so contentious a topic as the impacts of engaging with pornography. Experts must do that in academic journals, studies, and presentations. Therefore, the record leaves us with no option but to declare that the health impacts of pornography are currently too contentious and controversial to receive Zauderer scrutiny.

The science on social media’s “addictive” features is even more contested than the porn stuff the Fifth Circuit already rejected. Yet Hochul’s signing statement declares, with absolute certainty, that “studies show” spending more time on social media increases anxiety and depression. That’s likely backwards.

The studies show correlation, not causation. And actual experts in the field—not politicians cherry-picking abstracts—suggest the causal arrow likely points the other direction. Kids struggling with anxiety and depression aren’t getting adequate professional help and support. So they turn to social media to self-medicate, to find community, to cope. The increased screen time is a symptom, not the cause. Which means taking away that tool—or scaring them away from it with dire warnings—could make things considerably worse for the kids who need support most.

But the key here is that there is no generally agreed upon scientific consensus that social media itself, let alone any specific features of social media, are the cause of depression or anxiety. Yet, Hochul and Gounardes are forcing all sorts of sites to speak and claim that these unproven things are true. That’s dangerous! And obviously unconstitutional.

The bill’s language is so broad that it’ll snag far more than just Facebook and TikTok. Here’s the language in the bill:

“Addictive social media platform” shall mean a website, online service, online application, or mobile application that primarily serves as a medium for covered users to interact with media generated by other users and which offers or provides covered users an addictive feed, push notifications, autoplay, infinite scroll, and/or like counts as a significant part of the services provided by such website, online service, online application, or mobile application.

Techdirt has our comment voting system, which we created years before other systems of “likes” and whatnot, but do we need to warn users that our comments are addictive? Here’s the definition of “like counts”:

“Like counts” shall mean the quantification and public display of positive votes, such as but not limited to those expressed via a heart or thumbs-up icon, attached to a piece of media generated by a covered user.

We don’t publicly “quantify” people voting for “funny” or “insightful,” but we will display an icon when they reach a threshold. Does that qualify? Do I need to pay a lawyer to find out if I have to warn people our comments are addictive? Can I send the bill to Andrew Gounardes?

The whole thing is nonsense.

There can be exceptions, but they appear to be solely the determination of NY’s Attorney General deciding which sites to exempt, which seems to be putting way too much power in the hands of a single politician.

“Addictive social media platform” shall not include any such service or application which the attorney general determines offers the features described herein for a valid purpose unrelated to prolonging use of such platform.

We’ve criticized NY’s Attorney General in the past. Now she has a tool to punish us since she has sole authority of determining whether or not our comments qualify under this law. Doesn’t that seem like a problem? It does to me!

Obviously, this applies to way more than just Facebook and Tiktok. But also more than just our comments. It means almost any site with a recommendation algorithm? That’s probably covered. Auto-playing videos? Covered. Notifications of things that may interest you? Covered. That means news sites, recipe apps, fitness trackers, even email clients could theoretically fall under this law’s scope if they have the wrong combination of features and don’t play nice with NY’s Attorney General.

All of these services could face fines from the AG—the same AG with a documented history of launching bogus investigations against internet companies specifically to cover up New York’s own policy failures.

So what happens next? Either this law gets struck down immediately when challenged in court—wasting taxpayer money on litigation over compelled speech that even the Fifth Circuit wouldn’t tolerate—or it survives long enough to force websites to lie to users about nonexistent dangers, potentially driving vulnerable kids away from the online communities that actually help them cope.

Neither is a good look for New York. But at least Gounardes and Hochul will have gotten their headlines. That must be worth something.

Filed Under: 1st amendment, addiction, addictive feeds, algorithmic feeds, andrew gounardes, compelled speech, infinite scroll, kathy hochul, likes, new york, notifications, social media, social media addiction, warning labels, zauderer