← Decoder with Nilay Patel
Decoder with Nilay Patel
A jury says Meta and Google hurt a kid. What now?
00:51:10
Why nuclear options like age limits and repealing Section 230 won’t make social media safer.
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- [00:01]
Sponsor/Ad Reader
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- [01:46]
Nilay Patel
hello and welcome to Decoder. I'm Nilay Patel, editor in chief of the Verge and Decoder is my show about big ideas and other problems. Today we're talking about the landmark social media addiction trials that just resulted in two major verdicts against Meta and Google. There's one case in New Mexico against Meta, and another in California against both companies who both have said they plan to appeal. These are complicated cases with some huge repercussions for how these platforms work and the very nature of speech in America. So to help us work through it all, I've brought on two heavy hitters. My friend Casey Newton, the founder and editor of the excellent newsletter Platformer and co host of the Hard Fork podcast, as well as Verge senior policy reporter Lord Finer, who's actually in that Los Angeles courtroom where executives like Mark Zuckerberg took the stand in the case of a 20 year old woman named Kaylee, who successfully argued that Meta and Google negligently designed their platforms in ways that contributed to her mental health issues. These cases, the first in a wave of injury lawsuits targeting tech companies, are about the design decisions of platforms like Instagram and YouTube. They argue that the platforms have fundamental design flaws that harm users, especially teenagers, and that these companies knew about these problems and were negligent in shipping these features anyway. These cases are part of a much larger set of moves that aim to fundamentally change the legal mechanism that exist that might regulate social media. Now. Harm in the context of these cases isn't just addictive design that brings users back compulsively. It's also features like algorithmic recommendations and camera filters that make issues like anxiety, depression, and body dysmorphia worse. This emphasis on how the platforms work as opposed to the content, is part of a movement that has been building for years, focused on the argument that social media is not and cannot be healthy, that in fact these products might be defective the same way that cigarettes, when used as designed, cause cancer. That's a lot of complicated ideas, and Casey and Lauren and I really spent some time working through them. The first complicated idea is whether or not there is a distinction between product features like Recommendation, Autoplay, Video and Infinite scroll and the types of harmful yet legal speech served people on these platforms using those tools, like eating disorder videos or posts designed to convince young men to hate women. But it's very difficult, if not unconstitutional, to force the companies to moderate this kind of content in specific ways. The First Amendment obviously prohibits the government from regulating what speech these companies promote or moderate, and private action is usually blocked by section 230 of the Communications Decency act, which protects tech platforms from being held responsible for the content their users post. So it's really hard to pull all these ideas apart. An algorithmic feed with no content in it simply isn't a compelling product, let alone a negligently defective one that causes harm.
- [04:30]
Casey Newton
A lot of smart people who have
- [04:31]
Nilay Patel
been on this show and all over the Verge over the past few years have said that these rulings are just an end run around 230 and the First Amendment, a way to make platforms liable for what ultimately is just speech, and in a way that will cause more speech to be restricted. You'll hear the three of us talk a lot about that idea, and whether the growing calls to repeal 230 entirely have any logical connection to these cases, or whether they're just politically opportunistic.
- [04:56]
Casey Newton
But there are many more ideas at
- [04:58]
Nilay Patel
play here, and even more layers of complication.
- [05:01]
Casey Newton
You're going to hear Casey and I crash out a few times in this episode.
- [05:04]
Nilay Patel
Because we have been covering tech regulation for so long, it feels silly to act like everything is working well for regular people who have negative experiences with social media all the time. Section230 is 30 years old now, and it's unclear whether the world it was designed to help create ever came into existence. You'll hear Lauren talk about how some of the authors of Section 230 are open to changes, particularly around AI in speech online. At the same time, any changes to 230 run headlong into the First Amendment and potentially into opening the door to government speech regulations at scale. Like I said, it's complicated and I'm very curious to hear what you all think about this, because it's clear that a lot of things are about to be up for grabs.
- [05:45]
Casey Newton
Before we start, a quick reminder that
- [05:46]
Nilay Patel
you can listen to this episode or any episode of Decoder completely ad free by subscribing to the Verge.
- [05:51]
Casey Newton
Just go to theverge.com subscribe okay, platformers
- [05:54]
Nilay Patel
Casey Newton and Verge Senior policy reporter Lauren Feiner on the major social media lawsuits. Here we go.
- [06:11]
Casey Newton
Lauren Feiner, your senior policy reporter here at the Verge, Casey Newton, your founder and editor, platformer, and I would say forever Silicon Valley editor here@theverge.com I do
- [06:20]
continue to identify as the Silicon Valley editor of the Verge, so I'm glad you feel the same way.
- [06:24]
You can check out, but you can never leave, buddy. Welcome both of you to Decoder. I want to talk about these trials that a bunch of social media companies faced in in California and New Mexico. Lauren, at a high level, you were in the room for at least the trial in California. I Think Snap and TikTok settled that one. They were out. YouTube and Meta just lost a jury verdict. Describe what happened in those trials and what you saw in the courtroom while you were there.
- [06:49]
Lauren Feiner
At their core, these trials were about the design decisions that social media companies make, how users are going to interact with what comes across their feeds. It was really trying to get around a problem that has been going on with tech for a long time around. Can you separate design from content on these platforms? That's what these trials were trying to get at. And what came out at trial in the courtrooms were a lot of internal documents from these companies. In the LA case it was Meta and YouTube, and in New Mexico it was just Meta. And we saw lots of internal documents. Lots of former Meta employees turned whistleblowers take the stand to discuss the decisions they made and the things they saw. So that was a lot of what we saw at the court, in the courtroom and in la. We even saw the head of Instagram, Adam Mosseri, and the CEO of Meta, Mark Zuckerberg, take the stand.
- [07:51]
Casey Newton
Kasey, everyone's calling these bellwether trials. We call them bellwether trials on the Verge. The whole industry has decided that this is a word we're going to use. Can you just quickly explain what that means? You've been covering attempts to regulate these companies forever and the idea that these trials are a bellwether seems particularly meaningful here.
- [08:08]
As you know, Nilay, for Basically the past 20 years, companies have been able to use Section 230 as a shield. And whenever there is any remotely content related challenge to any of these platforms in court, they just get dismissed out of hand. The reason that these cases are bellwethers is that if they were successful, it would open up this new front for litigation and these companies could no longer just automatically use Section 230 as a shield. And that now indeed has happened and we're expecting there will now be dozens more lawsuits proceeding along exactly these same lines.
- [08:44]
Section230, as I'm hoping by this point, Dakota listeners know, is the law that says the platforms are not liable for what their users post. So if I put up a post on Instagram or TikTok that says, Casey Newton is horrible, hard fork is my sworn enemy, it should be made illegal. Casey can sue me, but you can't sue Instagram. And that has always been really important because it means that whenever anyone says they're harmed by the platforms, the platforms can say, it wasn't us. It was actually the speech that you're mad about. And our role in distributing or promoting that speech is actually the same as the speech itself. It seems like this trial did a better job of making that argument than attempts in the past. I'm thinking of cases like Herrick versus Grindr. There was the famous case against Snapchat with the speedometer filter where a teenager drove too fast trying to get a screenshot of him or photo himself running his car as fast as he could in Snapchat. Those cases were not bellwethers in the same way. What set these apart and why was that argument more successful this time?
- [09:41]
So I think the Snapchat case was a really important precedent. It's this case, Lemon versus Snap. Snapchat used to offer this filter where you could turn it on and take a video of yourself in your car and it would show how fast you were going. And plaintiffs successfully argued that this had created an incentive within the app for people to go really, really fast and do dangerous things. And indeed, in this, you know, particular case, there was a dangerous cr. So the reason that that was important was all of a sudden, the 230 shield isn't absolute. Right? There have already been a couple minor exceptions for, like, you know, you can't post about the platforms, have to remove, like, terrorism and csam. But now we're saying, okay, you can't actually offer a filter like this because it might incentivize a terrible behavior. This is what sort of opens up the rest of the landscape for the plaintiff's attorneys. They're able to say, like, well, what other design features are there of these platforms and what incentives are they creating? We're not going to talk about, you know, the actual messages that are being traded back and forth on Snapchat or, you know, the actual content of the post on the Instagram feed. But we are going to ask about things like Infinite scroll and Autoplay video and push notifications that arrive continuously throughout the night and might disrupt your sleep. And all of a sudden they were able to find purchase because they had that initial precedent.
- [10:57]
The thing that really got me at that is Snapchat had made that filter. That was Snapchat speech. They were the ones saying, well, if you drive fast, we'll generate a speedometer reading for you. And in this case, it's still not the platform speech.
- [11:10]
Right.
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You can make an Infinite scroll, you can make autoplay videos, and that is just ways that they are managing the speech of others. Did they have to overcome that? Because that seems like where you would hit the 230 rocks over and over again and say, we're just managing the speech of others. It's still the First Amendment, I think,
- [11:28]
that the plaintiffs were able to successfully argue Infinite scroll is not the speech of others. Right. Like, there's no sort of, like, liability of another person that gets involved here. It's, you built a product and the product is defective. Right? Like, they were able to successfully liken these things to, like, cars without seat belts. And it just really resonated with jurors. And I think it's worth taking a minute to talk about why that might be, because I think this is something that the people that I talk to at the social media companies never seem to understand. Everybody knows someone who has a huge problem with Instagram. This person is probably in your immediate family. They have deleted it a hundred times off their phone, and they always reinstall it. They've set the screen time limits, but they keep coming back over and over again, and they hate themselves for it. Right. This is a near universal experience in America now. And so when you sit a jury down and you say there's something wrong with Instagram, it's pretty easy to find a lot of people who say, that sounds right to me.
- [12:27]
One of my feelings was that if any of these cases ever got to a jury, that the thing Casey is describing would kick in. Like, everybody has these negative experiences with these social media platforms, and the companies themselves always tell us that statistically these problems are small, but their user numbers are so vast that even a small percentage is many, many millions of people. I think the platforms never got their heads around that either. Did you feel the same way there, that once you put Mark Zuckerberg in front of a jury, there was just no way that the social media platforms would win a case?
- [12:59]
Lauren Feiner
It was really hard to know, like, why were these jurors selected? Were they selected because they're the sort of people who don't use social media a lot or know about a lot of good experiences with social media. So I think that was the wild card in watching them was how are they really taking in this evidence? At the same time, it can be hard to hear some of this evidence. And anyone who know someone who's been through a mental health issue or has struggled with just using their phone too much or being on social media too much, I think a lot of us know people like that. If we're not those people ourselves, that's definitely going to affect them in some way on a human level. I mean, when I was watching Mark Zuckerberg on the stand, he was talking about a certain beauty filter that they had, and one of his own employees pushed back on including it and, you know, talked about, I believe, having daughters and, you know, thinking about how something like this would affect them. Maybe these people don't have as much experience with social media or don't have the exact same experiences that this plaintiff had, but they certainly know other people in their lives who've probably experienced something similar.
- [14:12]
Casey Newton
Also seems really relevant to say that TikTok and Snap settled before the trial. Like, that was the moment when I said, okay, like, they must be really, really scared. And I was actually waiting for Meta and YouTube to settle as well. That happened. I think it was clear they were in a lot of trouble.
- [14:28]
The comparison here that everyone is making is to big tobacco to junk food, to sugar, right? We all know these things are bad for us. Nicotine is awesome. So we can't stop ourselves. There should be some regulatory framework or we should make these companies at least communicate the risks. Does that framework hold for you?
- [14:48]
Lauren Feiner
One thing I think about that's kind of a big difference between this moment and that for Big Tobacco is that there's that saying that there's no, no safe cigarette. And there's a lot of studies that show that's not really the same case for social media, that some level of social media use has a positive or at least neutral effect on people. It's really that overuse, that compulsive use that is the main problem here and really the problem that people talk about. Social media does connect people with their friends, lets you stay in touch with people, lets you have social connection or connection outside of your immediate community. But obviously it also has really harmful, harmful sides to it and using it too much can cut you off from real social connection. So I think that's a big difference here. And so when people compare this to that moment, I do think that's really something we need to think about, that these aren't really one to one scenarios. That said, I think, you know, the comparison is made to pull out how these companies are finally having a lot of their documents come to light in front of juries, just like happened in the Big Tobacco trial. So I think that is really the point to take away from that comparison.
- [16:03]
Casey Newton
Casey, you and I have talked about this a lot. We owe our careers to social media in very real ways. The idea that the Internet let us bypass gatekeepers and go reach our audiences is very important to us. The flip side of that is, boy, a lot of bad people got to do a lot of bad things. How would you draw these lines?
- [16:20]
It is very tricky and you have to articulate it with some degree of nuance. To me, I separate the like Internet problems from the platform problems. Right. Like really, Neeli, like the Internet is what gave us our careers. The Internet is what knocked down the gatekeepers. Let us sort of, you know, in my case, like hang out a shingle on the Internet and say, hey, like I'll email you for money. Right? Like that. That is something that did not really exist in the pre Internet times. The platform problems are different. Right. And they have a lot to do with algorithmic amplification. Yes. But also these design features. Right. This feeling we've been talking about, like, I don't want look at TikTok as much as I'm looking at. I don't know how to stop. I have tried to Stop. Or I bought some device that bricks my phone when I walk in the door, right? These are the problems of creating a platform whose only incentives will ever be to get you to look at it as much as humanly possible. And so that's why I think the scrutiny is finally drifting over to those things, right? We don't want to get rid of an Internet. We don't want to get rid of your right to be able to post your opinion online. We want to get rid of this kind of machine that just increasingly seems like it's taking more and more of your time and attention in ways that make you feel bad that
- [17:34]
Sponsor/Ad Reader
we need
- [17:34]
Casey Newton
to take a quick break. We'll be right back.
- [17:45]
Sponsor/Ad Reader
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- [22:29]
Nilay Patel
Back with platformers Casey Newton and Verge
- [22:31]
Casey Newton
senior policy reporter Lauren Finer.
- [22:32]
Nilay Patel
Before the break, we were discussing the facts of these bellwether cases and how social media platforms, in the absence of any meaningful government regulation now find themselves unsympathetic defendants in jury trials, much the same way that Big Tobacco was once dragged into court decades ago.
- [22:48]
Casey Newton
Now, I want to talk through the
- [22:49]
Nilay Patel
big implications of what happens next and how we square the circle of social media regulation in a policy landscape that remains defined by section 230.
- [22:58]
Casey Newton
So that is the sort of story of the case. They went up, they lost. We'll see what happens next. The real turn here is what do they all do now, right? They've been held liable for these product features. There's some conversation that we should have at the industry that, you know, the United States of America is going to have about the difference between free speech and product features. We'll come back to that. But in the meantime, they've got to do something, right? They've got to change something about how their products work to avoid ongoing liability from anyone else who might look at these cases and say, we're going to see you too, Kasey. This feels like a trust and safety problem, right? This is your audience. This is the people you talk to the most. What is their reaction to this?
- [23:39]
Their reaction is. Is really negative. I mean, like, like in particular, talking to people who still work there. And what they'll say is, like, even if you buy the plaintiff's arguments here, fixing this is really tricky, right? Because again, even if you believe that this individual teenager had like, a horrible time looking at the. At these platforms for too long and it made all of her problems worse, okay, which design feature of this platform are you going to remove and how is that going to fix her problem? Right? Like, If Instagram and YouTube did not have Autoplay video, if it didn't have Infinite scroll, if it didn't have push notifications, would that have improved her mental health to a point where she no longer would have sued the company saying this is a defective product? I don't know. Right. I think that the problem that we just have as like, a society right now is we don't know what safe social media is. We don't know what features are really the most dangerous. I think we have instincts. I think there are experiments that we should run, but it's not as simple as, well, just turn off the autoplay video and all the teenagers will go play outside.
- [24:45]
Again, is it as simple as none of the teenagers in Australia should use social media?
- [24:50]
Here's the thing. As like somebody who writes more about social media than anything else, I have been shocked at the degree to which I am just throwing in my lot with Jonathan Haidt, like, I'm like, because. Because, like, I also don't know. I do not know which the feature, which are the features that we should get rid of that are going to make all the teenagers safe. What I can tell you is nobody who works at the platforms cares enough about any of your teenagers for me to trust your teenagers with them. So I would rather say don't look at it until you turn 16, because I know that's going to be better for you than them looking at it.
- [25:22]
So I think we can hear Casey, who talks to the people who works at the platform companies, fully crashing out about that experience. Lauren, you talk to policymakers all day long, nominally. You are our policy reporter in D.C. you cover Capitol Hill. We don't send you to courtrooms all day and all night, although that's what you've been doing on that side of the House. What are the policymakers doing in reaction to these verdicts?
- [25:44]
Lauren Feiner
So far, we've seen a big push from lawmakers who are behind some of the biggest social media reform laws, like Kids Online Safety act, saying, well, this just shows that we need these new laws or we need to repeal old laws like section 230 in order to make kids safe. So I think that is the big push right now. I think, you know, it's still really early days, though, and I am going to be really interested to see is that kind of where the momentum moves or is there maybe even a kind of a counterbalance to that that says maybe let's slow down? Because actually the sort of cases we thought wouldn't be able to go through through the courthouse are actually moving forward and they're doing so Even with Section 230 in place, even without COSA, I'm going to be really interested to see which way that argument goes and if that kind of speeds up or slows momentum in either direction.
- [26:44]
Casey Newton
All right, I warned you both that I was also having a crash out about all of this. And, Lauren, you've just arrived at it. The notion that those laws have anything to do with these trials and that these trials should let the government pass what amount to very strict speech regulations is just making me feel personally crazy. Right? That, okay, the platforms had some design features that made them addictive, so we should pass cosa, which will restrict the speech of marginalized groups, does not have any through line to me. Josh Hawley is saying we should get rid of section 230 and these trials prove it. And I can't tell you why that is. I cannot make the link in My brain between, okay, the platforms were optimized for virality and engagement and negative sentiment. So making them responsible for the speech in a way that will force them to take down more speech is the way to solve that problem. I cannot link those ideas together. Cannot. Can either of you?
- [27:42]
No, truly. I have read so many of the interviews with the Republican policymakers when they get asked about this stuff, and none of them seem to understand that if they do in fact get rid of 230 platforms will over moderate content because they will be in terror that a wide variety of things that can now be linked back to them could potentially result in legal liability. And they're going to hate it. Right? Like these are the guys that hate all content moderation and if you delete section 230, you're going to get more of it. So, no, it doesn't make any sense.
- [28:11]
Lauren, you've covered bipartisan attempts to reform 230, bipartisan attempts to do age verification, and laws like COSA. What's the view on the Democrat side?
- [28:21]
Lauren Feiner
I think there are really a lot of Democrats who support COSA and really are fully on board with those kinds of changes to the law and definitely have acknowledged some of the critiques around that, you know, this might harm marginalized communities or make it harder to access certain kinds of content that might get politicized on the Internet. But generally just think that those have been pretty much dealt with in the language of the statute. It's not really going to come to pass. And they've just accepted that. They feel like this is the best way forward. I mean, certainly not all Democrats. You know, obviously Ron Wyden, who co authored section 230, has not supported Cosa. There really is broad bipartisan support for these kinds of issues. So I think that's going to be the challenge for some of the hardliners on Section 230 and against Cosa right now to think like, is it that there's never going to be anything that changes on these issues or is there going to be some kind of change and we have to figure out what we can live with?
- [29:28]
Casey Newton
Here's where it gets really complicated for me and you two are just going to help me process these feelings together as a family. I look at, okay, there's a big trial that got lost. These companies are now liable for more of what happens on their platforms in a narrow way. And now there's a group of people that want to say, you're actually responsible for everything. We're going to tear down230 you're responsible for the content that you're distributing, and that will lead to even more liability and maybe you're going to take even more steps. And then I think, well, that's bad. Like taking down 230 is bad. I felt that way for 20 odd years. There's an infinite amount of coverage on theverge.com about why tearing down 230 is probably bad. And then I sit there for one more turn and I think, well, why? Like, we've all talked to Ron Wyden. Ron Wyden has been on the show. Lauren, I think you just recently spoke to him as well. Ron Wyden's a nice guy. Chris cox, who wrote 230thWiden, is a nice guy. The world that they were trying to create with section 230 never happened. Like, it literally does not exist. This law is 30 years old. It was written in a time when AOL and Usenet existed and were the dominant ways of communicating online. And their goal was to create a competitive marketplace of moderation where if you wanted your computer to be safe for your kids, you would literally download software and run it locally on your computer and it would sit in front of CompuServe and like filter the Internet for you. And that just never happened. It never existed. So now I feel like I'm in this place where I'm required to boldly defend a 30 year old law whose policy goals were never achieved. And I. I don't know why. Casey, I know you've been wrestling with this too. Like, how, how should I feel about this?
- [31:11]
I have complicated feelings too, because I want section 230 to exist so that platforms can host political speech, all sorts of speech. I think that it creates the possibility for platforms that are very like, rich and vibrant and fun at the same time. This is this 230 case that I paid a lot of attention to as a gay guy about Grindr. You guys, I'm sure familiar with this case, but basically there's this horrible ex that's like, I'm going to get back at my ex by posting his photos on Grindr and I'm going to send everyone his, like, physical address and say, go to this guy's house and, you know, he's going to, you know, indulge in your craziest fantasies and, you know, give you drugs. And this gets tossed out because of section 230, right? They sue Grindr saying, like, this is awful. You got to do something. And grinder is like 2:30, and the case goes away. That seems really awful for the victim of that case. Like, if I were in that situation, I'd be really mad at Grindr2 at the same time. Why should 230 be the thing that gets that person justice? Why don't we just take online harassment and violence more seriously in this country? So this is kind of how I square the circle is by saying, Section 230 in general does still support the kind of Internet that I want. And for a lot of the harms, mostly not the ones we're talking about today, but for a lot of the harms that do absolutely get enabled and protected by 2:30, I think we can probably find other ways of addressing the harm. But here's another thought experiment. What if the brain trust over at Meta got together and said, what would Instagram look like if it were great for teenagers? Do you think it would look a lot like the Instagram that we have today, or do you think it would look a lot different? I bet it'd be the latter, right? I bet it would look really, really different. And I think that there is a world where we don't live in this world, but I think that there's another world where the executives at Instagram did do that and said, you know what? Like, we're actually going to put out version of Instagram for teens. And look, it's like mostly educational content. It's actually not personalized to your teen at all. We've disabled all the communication features. You can only use it during daylight hours. I like, you can imagine a million things that would probably just, like, make this a safe product. So on some level, yes, it's tricky to figure out, oh, what would, like, the right version of Instagram be that would not get met into trouble. On the other hand, I think you actually could kind of sketch it out. So my curiosity is, to what extent are they going to try to go down that road? Because I'm sure they're going to be desperate not to be sued by every teenager in America. And to what extent are they just going to, you know, I don't know, try something shady and underhanded that I haven't thought of yet.
- [33:41]
They've announced, like, Instagram for younger people, right, these tools for younger people, and they get just dumped on for being cynical and trying to target kids? Like, can they do. Do they have the social capital to say, this product is safe anymore?
- [33:54]
No, I mean, like, my. My sort of nihilistic view on this is like, ultimately, like, what solves the Meta problem is that they just, like, get out competed by another company that like maybe is better in certain dimensions. But yeah, I like, I don't think the change is going to be come from within from these guys because all they care about is just winning and for them winning looks like maximum time engaged.
- [34:13]
I mean, to be fair, Mark Zuckerberg is currently busy hiring and firing hundreds of AI researchers every week against some goal that is yet to be defined. And the idea that he's going to stop and put all of his attention on Instagram safe for kids, like maybe only existential amounts of litigation will make him do that. Yeah. But I, I, I honestly wonder if, if Mark Zuckerberg is the right face of Teen Safety in America. And I think the answer is just flatly no.
- [34:40]
Yeah, I don't think the track record really would lead you to putting him in charge of that particular project. Again, like, and I think it's like important to underline this for folks to Meta addiction looks like success. They have huge teams inside the company, Cognitive scientists who work to understand the human brain so that they can get you to pick up your phone and look at at it as many times as possible. And this is why I feel so bad for the people who are mad at themselves for all the time they spend looking at Instagram. It's like you were not in a fair fight, okay? Like you lost a rigged game. And the reason that meta is doing that is not because they're literally evil. It's that they feel like the incentives of their business require them to do this. So unless those incentives change, no, Nilay Meta is not going to be the place to go to look for moral leaders on teen safety.
- [35:37]
We have taken on a quick break.
- [35:39]
Nilay Patel
We'll be back in just a minute.
- [35:49]
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- [38:07]
K Pop Demon Hunters, Haja Boys Breakfast meal and Hunt Trick's meal have just dropped at McDonald's.
- [38:12]
Casey Newton
They're calling this a battle for the fans.
- [38:14]
Sponsor/Ad Reader
What do you say to that, Rumi?
- [38:16]
Casey Newton
It's not a battle.
- [38:17]
Lauren Feiner
So glad the Saja Boys could take breakfast and give our meal the rest of the day.
- [38:21]
Sponsor/Ad Reader
It is an honor to share.
- [38:23]
Casey Newton
No, it's our honor.
- [38:24]
Sponsor/Ad Reader
It is our larger honor.
- [38:26]
Casey Newton
No, really, stop. You can really feel the respect in this battle.
- [38:31]
Sponsor/Ad Reader
Pick a meal to pick a side
- [38:35]
Casey Newton
and participate in McDonald's while supplies last
- [38:40]
Lauren Feiner
night.
- [38:42]
Nilay Patel
We're back with Platformer's Casey Newton Inverch Senior policy reporter Lauren Feiner. We just spent a good deal of time talking about Section 230 and whether the world it was designed to create ever really came into existence and whether or not section 230 itself is still worth defending. But there's another complication here, an important one. The First Amendment. Let's get into it.
- [38:59]
Casey Newton
The last piece of the puzzle, which I haven't really touched on here but is definitely a through line, is the First Amendment is freedom of speech. We are talking about platforms that regulate and control vast amounts of speech from almost everybody in the country all the time. When you Talk about changing the limits on these platforms and what they are liable for and how their products work. You are very directly talking about how speech is amplified and distributed in this country. There are a lot of people who have built entire businesses based on understanding how Meta will make their stuff go viral. You can have a lot of feelings about what those businesses are and what they look like and what they're doing to the brains of teenagers. But there are a lot of people who have built really big businesses on the back of these platforms. Are we just going to run head first in the First Amendment here? Is it impossible? Mike Masnick, who runs Tector, he was just on the show. Good friend. He thinks it's a disaster for the First Amendment. Taylor Lawrence, a friend, thinks this is a disaster for the First Amendment. Their argument is you cannot separate the product from the speech. The product itself means nothing. It is a speech that the product is distributing that is the problem. And so you are just trying to backdoor your way into a speech regulation by making the product liable for whatever harm. There's a part of me that buys this, but Kasey, I know you think you can pull the two apart.
- [40:11]
I agree that this is tricky and we should be careful. And lawsuits are often not the best way to work through this stuff because just in general, I would rather have, like, lawmakers and policymakers writing really careful versions of this at the same time. Why is infinite scroll speech? Why are like streaks speech? Like, why is like autoplay video speech? Like, at a certain point I think you can get yourself all the way to like, why do we make Ford put seat belts on their car like that? You're compelling speech. It's like, no, you're compelling a seat belt. Like, I think you should be able to compel product safety features once it becomes clear that you actually have a product safety issue. Now, I should say there are things that I would actually love to compel these platforms to do that are just obviously unconstitutional. Like, I would love to compel them to show educational content to children. In the same way that Congress once passed a law saying that broadcasters needed to provide at least three hours of educational programming a week. I think that was really good for society. Turned out at least when you apply to social media, that's just obviously unconstitutional. So I do think that you have to be really careful here. But if you're going to tell me that every single product feature of every social media app is speech, you truly are caping for these platforms in a way that it makes me uncomfortable.
- [41:29]
Lauren, one thing that I've been thinking about a lot is what happens to 2:30 in a world where the platforms are generating more and more of the content directly with AI. Google's AI overviews, that is probably Google speech, even though it's synthesized from the speech of millions of other people on websites. Do any of these regulatory regimes or attempts to change any of these laws contemplate that problem?
- [41:52]
Lauren Feiner
I think that's kind of the new wild west that we're going to be running into here with probably new lawsuits. But I think even Ron Wyden, who we've discussed many times today, has said that AI outputs aren't necessarily protected by Section 230. So I think those will likely be treated differently. I mean, we won't really know till we see a court case come out on it. But I think that's going to be a big question. And I think the thing to remember with section 230 is that it's really a procedural tool that stops lawsuits kind of in their tracks and how cases get decided in the end is based on the First Amendment. So, you know, unless you're going to get rid of the First Amendment, getting rid of Section 230 doesn't really completely get rid of the problems that maybe some people, people think they would.
- [42:42]
Casey Newton
I want to ask you guys what you think about something because I'm still working through this in my own mind. We were talking earlier about like, okay, well what is the specific feature that like leads to the mental health problem suffered by like Kaylee and some of the other folks in these bellwether cases? And I do suspect that, you know, autoplay, video, infinite scroll, endless push notifications that all have something to do with it. I suspect maybe though the strongest factor is algorithmic personalization, right? It's I search for one video about how to get skinny and now all of a sudden I'm in like a nightma wasteland of eating disorder content. And that actually does increase my depression and it leads to increase the intensity of my eating disorder. Okay, as a society I think we want to stop that, right? We don't want you to get dragged down that rabbit hole. We don't want you to develop that eating disorder. Can we regulate that? This is actually just the trickiest issue to me, right? Because on one hand I could see Congress passing a law saying, hey, if you're 16 and younger, we just want to disable algorithmic personalization at least at the level of the individual, right? Maybe we'll group you into a bucket and we'll 16 year olds in America seem to like this kind of content and we're okay with that. But you personally know we're going to block that for you because we don't want you to get dragged down a rabbit hole. But is that constitutional under the First Amendment? I don't know. I'm just curious what you guys make of that.
- [43:58]
I've been thinking about this a lot and I keep thinking back to Barack Obama on decoder. And we talked about regulating AI a lot and he was talking about regulating AI with me because he felt he had failed to regulate social media.
- [44:11]
Nilay Patel
Social media.
- [44:12]
Casey Newton
And you could see the connection in his brain. It was, it was clear as day, he's like, we failed social media. We got to get AI right? And I kept asking about the First Amendment over and over again. How are you going to get past the First Amendment? And at the end he said, look, you just need a hook. You just need to find a hook the way that we found a hook to regulate broadcast television. In the case of broadcast television, the hook was very obvious, right? There's only so much spectrum, it's a scarce public resource. So we can make some regulations to make sure we make good use of that resource. And you can immediately see the danger in that, which is that Brendan Carr has power over broadcast television decision. And now we have an unrestrained speech regulator in this country. That's not good. At the same time, the idea that Barack Obama's like you just need a hook is a reflection of the standard in the law which is called strict scrutiny. And you can do a speech regulation under the First Amendment if it's narrowly tailored to achieve a compelling government purpose. These are the words in the precedent. Strict scrutiny, narrowly tailored, compelling government interest. Well, I don't want a bunch of 16 year old girls to get eating disorders. Feels like a very compelling government interest. Interest you can attach a very narrowly tailored rule to accomplish. And I'm very curious if that is the future where we're going to say this stuff causes harm. Here's one rule to stop this content. You can detect this content with the power of AI Mark, you can now detect all those GPUs, detect the eating disorder content, get rid of those communities. I think that's just as bad, right? That's just as bad as Brendan Carr. Unrestrained speech regulator. That's just a bunch of government speech regulators. But if 230 prevents mass litigation against the platforms. Right, because as Lauren's saying, it's a procedural mechanism that says you can't sue us at all if you have to dance through these hoops of, well, it's product design features, but no one can identify the specific product design features. I think a bunch of state regulators are going to say, look, there's some stuff we know is bad and we're going to pass those laws and we're going to take those to the Supreme Court and say these are narrowly tailored to meet a compelling government interest. And I don't know if that's how that will play out. I suspect it's going to start, and I certainly don't know if that's good like I'm. But you can see that that is the next escape hatch here because that is the standard for a law that regulates speech in this country.
- [46:25]
Lauren Feiner
Kasey I think that's exactly the right question about algorithms, because I think it's much easier to make the argument that, you know, Infinite scroll or Autoplay, it's not really about content. It's not really even much of a decision by the platforms. But what a chooses to program their algorithm to recommend or not recommend, those are kind of their deliberate choices. And, you know, we've already had a Supreme Court decision saying that, like, content moderation is basically editorial discretion. So I think that's where it gets really tricky. And I think you're right. That is kind of exactly the sort of thing that people who are advocating for these changes want to see changed, but it's probably the trickiest one to do.
- [47:07]
Casey Newton
Addie Robertson wrote this for us a while back. It was just a piece on how America turned against the First Amendment, this notion that we all care about free speech and everyone says it and then you kind of push on it and everyone wants a little bit more speech regulation than before. And that has only been growing over time. Even the people that are like, I love Elon. We're watching in the Elon Sam Altman trial texts from Mark Zuckerberg to Elon Musk saying, I'm deleting all comments content that identifies the people in Doge. And Elon's like, great, do you want to buy open AI with me? Like, Mr. Free Speech Warrior is like, yeah, delete that stuff. And Mark is saying, I will never, ever cave to the government again. And he's emailing the government employees saying, I'm deleting the names of government employees. This is crazy to me. And it just seems like we are entering a period where there's more pressure from the government on speech than ever before. Everyone is a little more okay with it than ever before, and we are all still Pretending like we all care about free speech the most. Kasey, that feels like a nightmare in the trust and safety context. You wrote, I think, at the beginning of Trump too, on how trust and safety was out of favor and no one was pushing back anymore. That was a while ago. What does it feel like now?
- [48:15]
So I wrote this piece and the headline was, is anyone left to stand up for trust and Safety? You know, trust and safety used to be a really vocal part of the tech industry. And they advocated for a time long lot of good pro social, civic values. They talked a lot about human rights. They tried to bake human rights principles into the policies that these platforms observed when they were moderating content. And so I just sort of had a natural affinity to them. Right. Like, in my view, these were the good guys. And then Trump gets swept back into power, a bunch of layoffs happen. Every platform decides, almost without exception, that their best move is to try to curry favor with the Trump administration. And all of these folks just get pushed aside. The ones who were the most vocal about human rights principles disappear. And all of a sudden you have people like Joel Kaplan at Meta running the policy operation. And his main job is just to essentially get Donald Trump to like Mark Zuckerberg and try to ensure that we get, you know, whatever we want. And it's been hugely effective for them. By the way, Mark Zuckerberg has gotten an insane number of things from Donald Trump, and I'm sure he'll get more, you know, as the years go on. So I got a lot of pushback from the trust and safety community when I wrote this piece, because I was essentially calling them out, just being like, hey, like, where are you guys? Like, are you actually going to get on a microphone anywhere and say, hey, it's really bad what is happening to our industry? And what they told me very justifiably was like, we do not have the power that you think we have. And also when we do speak up and when people do know our names, we get death threats and we get hounded to the ends of the earth. And it's really scary. And you're asking us to sacrifice, like, maybe even our lives to like speak out in favor of these principles. That's like kind of a bs. So, so all of that is fair. And yet fast forward to almost a year later now. I think the question still stands, like, what happened when these people stopped speaking out was they just gave free rein to the oligarchs to run these platforms as they see fit. That's a really scary thing. To me is that trust and safety really is no longer meaningful at any of these platforms except as a compliance function to keep them in line with various regulations. And the result is now you just have a bunch of oligarchs trading favors over signal.
- [50:24]
Lauren, I want to end with you. Obviously the regulatory side of this is just in full throttle right now. They have something that at least shows that meta is bad, that YouTube is bad, and you can make some moves. What do you think happens next on. On that side of things?
- [50:38]
Lauren Feiner
I think we're going to see a lot of discussion in Congress about, you know, whether to pass these new laws to repeal Section 230. But I think, you know, where we've seen most of the action has been in the states. I think, you know, we'll probably continue to see that move forward. I think in the courts we'll see these cases be appealed and at the same time we're going to see new cases brought. There's still, you know, in the LA case, there's I think, over 1500 cases behind that. There's several more bellwether trials just in that set of cases that are already scheduled. The next one, I think, is going to be in a few months. And then there's a totally different set of bellwether trials in a federal version of these cases, with the first one kicking off in June, June. And that's, you know, a school district and there's school district, state AGs, individual plaintiffs. So this is really not going to slow down at all. And I think if nothing else, what these trials have done is just brought to light a lot of this information about how these companies work. And I think you just brought more awareness among the general public about, you know, what to be thinking about and aware of when their kids are using social media, media.
- [51:50]
Casey Newton
It does feel like just a, a perfect description of the experience of being in America right now. They're going to set just a mishmash of policies across the country until everyone pays enough money to the lobbyists to get a law passed that like, solves the problem. And that just feels like at once the most nihilistic, cynical thing I can say. And also just how everything works all the time. Do either of you see an off ramp from that?
- [52:15]
I mean, like, recent history would suggest that, like, no, there's not really an off ramp because again, like, all the incentives are the. Are for these companies to get you to look at their app for as long as they can get you to do that. And so until the pain of those incentives is Worse than the benefits of the revenue that brings in and what it does to their stock price. I don't see a big change coming.
- [52:40]
Lauren, do policymakers sending that they're trapped in this kind of doom loop?
- [52:44]
Lauren Feiner
I feel like the policymakers who've decided that COSA is the way repealing section 230 is the way, you know, that is their focus. You know, I don't think there's kind of this new discussion about how exactly should we do this. We have seen some newer approaches with things like app store age verification, and there's kind of different variations on how that could potentially work, whether it's real verification or shirt. I think in general, policymakers have chosen what they think the solution is and that's how this conversation is going forward. And I think if people want to change, you know, what are the mechanisms of that conversation, they're really going to have to inject new solutions or think differently about the incentives here.
- [53:31]
Casey Newton
Here are my three ideas, just to end with. I'm curious for your thoughts. One, I think a federal privacy law is long overdue. That doesn't feel like it insults the First Amendment. Two, I think, Casey, to your point about algorithmic personalization, I think just requiring algorithmic transparency would go a long, long way. Show us why you are showing us the things you're showing us. Make your algorithm transparent. And then third, require them to do the research. Right? Make them do the research and publish it so there's not this incredible negative incentive to avoid knowing anything.
- [54:03]
Nilay Patel
It ever.
- [54:04]
Casey Newton
I look at all that, I'm like, oh, that's the European approach. Like, I'm just describing Europe. Have any of those things worked in Europe yet? Or is it just too early to tell?
- [54:12]
I think it's too early to tell. I think that some of the transparency requirements that they've implemented have been good. You know, it's like there's now like some kind of, you know, database that you can go to where they have to essentially like, file like a lot of the moderation decisions that you've made, like, that's accessible to the public. Like, I think these are good things. I think what we haven't seen yet get is like, consensus on like, the specific problem we're trying to solve and like the exact right mechanisms for solving it. Right. I think it's like. And again, because. Because it gets so, like, mixed up in these speech issues. So I think we, we need to continue to try to like, narrow in on like, what is the exact problem we're trying to solve and then from there, try to build some consensus around like, okay, what can we really say in an empirical way, like, this is what is going to protect the teens from like having horrible outcomes. I think we gotta keep driving at those things or otherwise we're just gonna continue to spread our wheels.
- [55:04]
Casey writes Platformer. He podcasts with Kevin Roose at Hard Fork, which is wonderful, although they're my sworn enemies and I think they should be legal. Lauren's work is all over the Verge. Lauren, you've been on Decoder so much recently. Thank you for coming on yet again. Let us know what you think. I'm dying for feedback on this episode because unlike so many Decoder episodes, I think you can feel none of us quite know what's going to happen next. Or maybe more troubling what should happen.
- [55:32]
Nilay Patel
I'd like to thank Casey and Lauren for taking time to join Decoder and thank you for listening. I hope you enjoyed it.
- [55:36]
Casey Newton
Let us know what you thought about
- [55:37]
Nilay Patel
this episode or really anything else at all. Drop us a line. You can email us at decoder@the verge.com we really do read all the emails or hit me up directly on threads or bluesky.
- [55:45]
Casey Newton
We're also on YouTube.
- [55:46]
Nilay Patel
You can watch full episodes at Decoder Pod. We also have a TikTok and an Instagram at the same handle@decoderpod.
- [55:51]
Casey Newton
They're a lot of fun. If you like Dakota, please share with
- [55:52]
Nilay Patel
your friends and subscribe over your podcast. Decoder is production of the Verge and part of the Vox Media Podcast Network.
- [55:57]
Casey Newton
The show is produced by Kate Cox. Nick Statt.
- [55:59]
Nilay Patel
It's edited by Ursa Wright. Our editorial Director is Kevin McShane. The decoder music is Redbreak Master Cylinder. We'll see you next time.
- [56:07]
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