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Mobile Dev Memo Podcast
Season 7, Episode 12: Considering the future of Section 230 (with Ben Sperry)
00:42:53
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A
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B
The problem is that the distinct needs to be drawn between the competence of the economists and the correctness of their analysis.
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A
Hello and welcome to the Mobile Dev Memo podcast. I'm your host Eric Suefert and I'm joined today by Ben Sperry. Ben, welcome to the podcast.
- [00:48]
B
Yeah, thanks for having me. I really appreciate this opportunity.
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A
So you, you are involved with the icle, but you were not in Rome last month if I remember. I don't remember seeing you there anyway.
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B
No, no, not all of us had the privilege of being invited out there. We are separated into two silos. The competition silo made its way to Rome, the innovation silo, for the most part there was a few people that are based in Europe that might have been there, but for the most part we stayed stateside.
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A
I see. Okay. Well, you missed a nice event. It was very well organized, beautiful venue, really interesting panels. I really had a. I had a good time. I don't mean to rub it in by the way either.
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B
Yeah, yeah, right, right.
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A
All right, so we're going to talk all about these recent social media court, the New Mexico case, the California case. Before we dive into that, please introduce yourself to the audience.
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B
Yeah, as you mentioned, my name is Ben Sperry. I'm a Senior Scholar of Innovation Policy at the International center for Law and Economics. My research focuses on the intersection of civil liberties and government regulation, including online speech and platform regulation. Importantly here I was actually the principal author on an amicus brief in Massachusetts versus Meta, a case that's very similar and its underlying arguments to the two jury trials we'll be talking about. I've also written pretty extensively on the questions of the First Amendment section 230 and the law and economics of products liabilities applied to online speech platforms. The core point of my writing on these issues is that applying products liability to online speech platforms is a difficult fit. It could likely result in a lot of collateral censorship. First, when those platforms seek to avoid liability for user generated speech by restricting the speech itself. Second, when platforms place restrictions on minors accessing what is protected First Amendment speech. And then third, when speech platforms become less and less engaging and interesting if they're potentially liable for how speech is presented. So I guess that's background on me and my writing on this issue.
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A
Well, and certainly it's all very sort of relevant to these cases in particular. I think maybe the right place to start. I imagine most people listening to this are familiar, at least superficially, with the cases, but I think, think like the best place to start this conversation would just be to do a deep dive on those two cases. Right. So we're recording this on Friday. The cases were decided last week. This will be released next week. So it'll be have been two weeks. But I think, you know, these are still pretty big topics in the news. But maybe just, just kind of give us an overview of the cases in California and New Mexico that were decided last week as we record this.
- [03:25]
B
The California case, which is KGM versus Meta, is actually a private products liability case bought brought on behalf of a young lady for injuries she suffered as a minor. It's been described as a bellwether case because there's like 1600 plaintiffs suing in California alone who have been consolidated in another case moving through the pipeline at present. And then across the United States as a whole, there are thousands of similar lawsuits pending. I've seen one estimate of over 10,000 for individuals and almost 800 for school districts. New Mexico versus Meta is a consumer protection case brought by the state itself. 40 other states attorneys generals have filed similar claims against Meta, but this is the first to get all the way to a jury trial. New Mexico, the jury found in favor of the state finding meta should pay $375 million in damages for failing to protect users, young users from child predators on Instagram and Facebook. The New Mexico jury also found Meta was responsible for misleading consumers about the safety of its platforms. Both these claims were under state consumer protection law. In California, the jurors concluded that Meta and Google should pay the woman $3 million in compensatory damages and an additional 3 million in punitive damages for its product design features, with Meta being on the hook for 3 million of that, or, excuse me, for 70% of that amount. While these are actually not that big of amounts for Meta or Google, in this individual case, as I mentioned, tens of thousands of similar cases, as well as potential class actions represent representing even more users could result in substantially higher damage amounts if the same outcome results. So those are the two main cases we're talking about.
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A
What were the core legal theories used by the plaintiffs in each of these cases and how do they fundamentally differ? Right, so. So we had, you know, Just to. So I think one distinction here that's important is the compensation awarded in the California case was much, much less than in the New Mexico case. So these were like kind of different, just even on that basis. But talk to me about the different legal theories that were used in each of the cases.
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B
Yeah, the legal theories shared a lot of similarities because they're both basically product design cases that attempted to focus on how the speech platforms were designed rather than the underlying user generated speech. The California case makes this explicit with the plaintiff alleging products liability claims that the social media companies caused her mental health harms related to usage with those platforms by addictive design features like Autoplay, Infinite scroll, ephemeral content notifications, algorithmic recommendations and the like. There is also an allegations that the platforms didn't do enough to verify the ages of its users before allowing them to create profiles. The New Mexico case proceeds under consumer protection law, specifically the Unfair Practices act, using its authority over unfair and deceptive trade practices and unconscionable trading practices in the conduct of any trade or commerce. The state similarly argues that Meta's design features addict young people and expose them to dangerous content related to things like eating disorders and self harm. But the bigger focus in New Mexico was actually the Meta's design features also enabled predators and pedophiles to engage in child sex exploitation as well as like share child sexual abuse material or csam. The unfairness claims are saying that these design features were harmful to consumers. And then the deception claims were saying or focusing on how the features were contrary to Meta's public commitments to providing safety to users. So the reward was also bigger, as you mentioned in New Mexico, in part because it was brought up on behalf of like all the users in parents and New Mexico and not just one individual plaintiff. But it was also a focus for the jury, not just though it was there on the addictive design features, but on this child predator CSAM aspect of what they thought Meta didn't do enough to do protect against.
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A
I see, so it's just kind of like a much darker basis for the lawsuit in New Mexico.
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B
Yeah.
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A
Okay, so you talked about how your research pertains to section 230. How did both of these states successfully bypass section 230 immunity to bring the cases before the jury? Because I mean you'd imagine that, I mean that's kind of the fundamental basis for section 230 is to. Is it, I guess the mechanics design? I mean it was that sort of like imputed intent, right? Is that the way they were able to get around section 230.
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B
So both cases, the courts considered section 230 and actually the first amendment and challenges before the jury trials took place. Both courts accepted the framing that these cases were not about the underlying content, but about the conduct of the social media companies and how they designed their platforms. So, for instance, on Section 230, the California Judge rejected the use of a but for test that would provide Section 230 immunity solely because the cause of action wouldn't otherwise exist but for third party content. They concluded that, quote, the fact that design feature like Infinity scroll impelled a user to continue to consume content that proved harmful does not mean that there can be no liability for harm arising for the design feature itself. And then on the First Amendment question, the court said allegedly addictive features of the defendant's platform, such as like Endless scroll, cannot be analogized to how a publisher chooses to make a compilation of information, but rather are based on the harm allegedly caused by those design features, regardless of the third party content viewed. Now, this is despite the fact that both cases were ultimately about the types of content that was harmful to users. Whether we're talking about content glorifying self harm triggering body image problems, or other mental issues, issues associated with social media companies. To the contrary of what the courts said before these jury trials started, many federal courts have found that Section 230 applies to claims ultimately about third party content and that the First Amendment protects the publication of speech from products liability claims that would interfere with the underlying speech expression. For instance, a court dismissed a product's liability claim against Netflix some years ago over its series 13. Reasons why stating that the plaintiff's efforts to distance the claims from the content of the show itself do not persuade. Without the content, there would be no claim. The claim there was that Netflix and its algorithmic recommendations for that specific show not putting some kind of warning, the kids shouldn't watch this. It glorifies, you know, suicide should have gave rise to Netflix being liable for it. Well, the court rejected that like is being just basically inconsistent with how we think about the First Amendment. To see how this is obvious here, consider a hypothetical world where the social media companies use the same addictive design features, but only host variations of those fireplace videos you can find. Right. When we believe that these features are causing harms to minors or anyone else in that case. Well, maybe in the sense that they're extremely boring and therefore depressing. Right. But not in any sense that they're actually actionable. Got it.
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A
Because I think that it kind of raises. I mean, again, not a lawyer. This is my, you know, layman perspective here. But I mean, that's. So we think about like this kind of these decisions would probably motivate a lot more lawsuits for these companies. But though in, in particular, right, because we, in the California case, it was Meta and Google New Mexico is just met up. But is this going to motivate more lawsuits for kind of any company that employs these tactics? Because the like is not unique to Facebook or Instagram. Infinite scroll is not, I mean, certainly even just more social companies. I mean, Infinite scroll is fairly common tactic. But I mean like Netflix you mentioned, I mean they do algorithmic curation. I mean Spotify does algorithmic curate. I mean like these are commonplace right across like the consumer tech landscape. So do you foresee that happening or is this, is there, is there an element of this that's, that is exclusive or specific to social media?
- [11:23]
B
No, you're right to mention that these are sometimes common things. Algorithmic recommendations are coming across the entire Internet ecosphere. Almost everything uses them, right? From search engines to, you know, the Netflix and the streaming services, Spotify, right, wherever your podcasts are found. And what I will say is two things, right? One is Meta and Google may be well positioned in some ways as established players with a lot of revenue to figure out compliance. They might be able to redesign their platforms. They might be able to figure out a way to age, gate and restrict younger users from using the bad version or the adult version. It would be costly, but they might be able to do it. They might even be able to afford these damages from juries and maybe settlements in the future. The problem is for smaller players or other entrants into these spaces, they might not be able to afford compliance or the threat of litigation. And that's what Section 230 is supposed to be about to protect against ruinous litigation, to protect against regulation that actually stifles competition and innovation online. And yes, it could open the floodgates to some degree. I mean, we talked about, there's all these pending lawsuits by school districts and states and other possible class actions. If the courts continue to follow this line of reasoning that's been accepted by these two courts on section 230. They're going to be a lot of litigation. And the question will then be how do products liability type suits interact with the First Amendment? As I kind of mentioned with the Netflix example, courts have been uncomfortable in the past with applying products liability to protected First Amendment speech, even when it leads to harm. It's only when the speaker makes some kind of like explicit promise to its hearers or readers of safety that these things are usually be found actionable at all. Even how speech is presented. The Supreme Court has said that's protected. Like if a newspaper and its editorial judgment can decide to use, you know, some big font for a headline and then tease a story and then put it on another page a couple pages later and then put an ad beside it. Is that an addictive design feature that made you want to keep reading? Right? Or if Netflix like we said, or streaming video service ends on a cliffhanger, like its show ends on cliffhanger and it has autoplay for the next episode, the next season, is that addictive design? Quartz will likely be reticent to say so. I think so, yeah. The floodgates might be open in a new way, but it'll be an interesting time to figure out the exact contours of these claims in light of the First Amendment. Even in these social media cases. I don't think this is the last word, not even in these cases. I think there's going to be appeals almost certainly and appellate courts are going to have to figure it out.
- [14:10]
A
So kind of on that note, what are the immediate compliance or operational hurdles that Meta and Google now face? I mean do they, I mean do they have to do anything before the appeals are decided or I mean what, what kind of like changes do they could they need to make to their products as a result of these results?
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B
I believe it's been out in the media already that they are planning to appeal. Most likely they're going to ask for some kind of of stay in the meantime so that they don't immediately have to change their systems. But you know, with not only these cases, the because they're based in the United States and a lot of bit of businesses here, but with stuff around the world they're already having to think about how are they going to either create a separate product for younger users or start age gating or age assurance or something like that. These things are already largely in the work and like I said, like they might be able to afford to figure these things out in a way that smaller or newer competitors may not. And like we said, like it's going to have effects far reaching and far beyond the social media context. Anybody that uses similar features may need to be very aware of how that could be a problem going forward. If this is the way courts are looking at this now, is there any
- [15:29]
A
sense now of like what changes they, you know, I mean, like, you know Very practical, observable product changes that they would need to make. I mean, is one of those just age gating? I mean that, that you know, applying only to children? Is that, or is it, is it deeper than that? I mean because you know, if you say that Infinite scroll is abusive or whatever predatory, that's going to change the entire construction of the consumer Internet. Do we have a sense now of what changes they might be mandated to make?
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B
Yeah, it'll be interesting, right, because when we're talking about damages, the damages rewards almost have to be enough for the company to care. And what I mean by that is. And it can happen. Everybody remembers this case from years ago where a lady poured hot coffee on herself on the drive through from McDonald's, right?
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A
Yeah.
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B
Well it did have a real world effect. McDonald's lowered the temperature of its coffee, which arguably probably was way too hot if it could lead to the degree of burns that lady had. It wasn't even the compensatory damages in the cases, the punitive damages in that case and then the threat thereof if other people had the same thing happen to them that made McDonald's have to be like, you know what, we better change this here. It's probably the threat that if other cases go the same way and you start to multiply the plaintiffs many, many times over, that might actually make them change what they do. And to your point practically, it might not be an injunction against certain practices, but they might end up having to say, well I guess juries have decided that we either need to age gate, which comes with its own first amendment questions, or we need to get rid of for everybody, at least to some degree, algorithmic recommendations, infinity scroll, ephemeral content and so forth. Which one they decide to do may be depending on how they decide if this is just an issue with minors or if this potentially opens them up to liability for everybody else too if they use these things. And, and that's another interesting question.
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A
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B
Yeah, the potential implications for free speech are serious. To avoid liability, both the curation and the presentation of speech would likely be affected, contrary to the claims of the plaintiffs and accepted by these courts here. Clearly, it's the underlying speech that is hosted that will have to be considered if these jury verdicts stand. Speech platforms will probably remove a lot of speech that is protected by the First Amendment law if it could be seen as potentially harmful to minors. And then obviously how speech is presented is the target of these lawsuits. But so, you know, that could lead to the removing of a lot of these features that are allegedly addictive, but that could also make these platforms pretty dull to use, and that could be to the detriment of both users and content creators alike. I mean, imagine if this podcast is no longer recommended to those who view similar content, or if its fans no longer receive notifications for a new episode. That would be a harm to them, but it would also be a harm obviously to the content creators. Even who is allowed to access speech. Platforms themselves could be affected if these cases stand. I mean, if miners, who aren't really a great source of revenue anyway, they don't have a lot of money or payment cards to buy products online if they become too costly to serve because of the threat of liability, the answer will probably be to age gate them through strong age verification and banning them at some point. That could be the next step. This would itself probably run into First Amendment issues. I mean, we have precedents that say you can't basically age gate for protected speech. That's unconstitutional if done by statute. So it seems odd that you could get the same effect by alleging that it's negligent. Or somehow a product's liability or consumer protection problem because they didn't do enough to age verify before they created an Instagram account seems a little incongruous. But that's the result that could end up happening is basically restricting minors from using speech platforms that are largely just hosting speech that's lawful to them. We're not talking about pornography here. We're talking about, you know, for the most part, videos of other kids dancing and stuff like that. Right. I know there's a lot more to it. But like there's a lot of protected speech and the vast majority of it is protected speech, even as the children on these platforms.
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A
Yeah. Right. And I think, you know, it's also like it's not just a tool for consuming content, it's a tool for broadcasting content. So I mean you'd be cutting people off from a mechanism for communication. Right.
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B
And for self expression. Yeah. Kids themselves, in some cases minors themselves are able to create a lot of content, whether that's just for their own friends and family or. And you know, you do have examples of content creators of even, even very young ones having substantial revenue as a result. But regardless, it's speech. Right. And they are cut off from not only participating by receiving speech, but as you mention, being speakers themselves.
- [21:31]
A
One thing that kind of came to mind and I mean maybe there's just. These are totally distinct product categories and there's not, there's nothing to be learned from these cases, you know, to, to apply to other categories. But, but is, is Roblox. Right? So I mean, I think, you know, you think about Roblox that you're familiar with the game publishing platform. It's really popular with kids. They build their own games and distribute them on the platform. Yeah, I mean I feel like you've got this, you could make or just, I mean I'm saying, you know, Roblox is an example. But like you know, we've talked about Netflix, we've talked about Spotify. It just if these are truly considered like mechanisms that are designed with the intent to, to addict people and in particular children. I mean there are very specific sandboxes that are designed for children that use this and it's. And that are also billion dollar companies that are also publicly traded. Right. High profile. My sense is like I don't know where you and which are into an even greater degree like creator marketplaces. Right. So social media is a place to broadcast my thoughts or whatever and maybe some videos. But a Roblox is a platform for me to build a product and deploy it. But they nonetheless have algorithmic curation in discovering these things and they allow for liking and that kind of thing in certain contexts. So I just, I don't like. It just seems weird to me that this was the first place to start. Not that I would want to see any, you know, not that I would hope that like any particular company gets this kind of scrutiny. Not I'm just in, you know, I just don't have an opinion on that. But, but it just seems like, like Facebook and social media, if you really wanted to explore like, like these issues related to children, it feels like, well, the products that are designed to be used by children would be the more obvious first starting point and also probably if these mechanisms are deemed to be especially addictive for children and then would probably also they're going to face like a greater challenge in adapting. Right. Is that the right way to think about it or is it just, you know, meta's big, Google's big, and that's why they started there.
- [23:44]
B
You know, that is a good point. I would say this. When it comes to something like Roblox and other similar platforms, what they would probably need to be cognizant of, especially after the New Mexico jury verdict, is how their platforms could be used by real child predators to connect them with minors. Right. Like that's where they're going to need to be wary. And, and while the other product design stuff that we talked about, the addictive features, I'm a little skeptical of that part of it. I think companies should probably be very aware of and do things to prevent or at least limit the ability of unknown adults to interact with children or creating opportunities for them to do so. That's where I think these, these platforms need to be especially cognizant. And maybe to your point, regulators and enforcers and investigators should have been focusing is really on that is more so than whether we, we, we don't like algorithmic recommendations or likes or autoplay. Maybe they should really have been focusing on as New Mexico did to some extent. Are these companies doing enough to prevent unwanted actions by adults to go after kids and use their platforms to do so? And there's always a limit, right. And there's always a trade off. You can use a phone, you can use text messaging, you can use emails. Right. To go after kids too. But those are general purpose products that have so many lawful uses. We don't restrict how they're used in general because they can also be used to be terrible things. To some extent. Instant messaging on these platforms could be analogized to that. So there's a limit to what you can do. But as a general matter, you don't want to create a platform like the Omegles and other ones that no longer exist for maybe good reason where adults can use the targeting abilities of those platforms to find children and do predatory things.
- [25:46]
A
I see. Yeah. It just feels like the focus on these, these mechanisms which are essentially ubiquitous, is like an odd way to approach the harm angle as it pertains to children. Like it just it just feels like, well then, because they're again, for like these very large platforms that serve a very general audience. Right. If you wanted to, if you wanted to specifically scope this to the harms for children, it seems odd to start with a broad based general purpose social media platform where I'd assume, you know, children are not even in the, the majority of users when there are platforms that are specifically designed for children.
- [26:26]
B
Right, no, no, you're right about that. And you know, we do have coppa. It doesn't quite get it, all of what we're talking about, but that is a federal law that was designed to protect the privacy of children under 13. And there's been proposals of that to extend it up to 16 under 16s and that kind of thing. So there's other ways that this could be targeted to more specifically get at real harms that everybody agrees are harms to children. And these cases, the New Mexico case to some degree tries to go after those things, but they're also way broader than that and will have implications way broader than that for free speech.
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A
Yeah, no, I mean, I'm very familiar with, with Cope with coppa and I mean, you know, having, having worked in the mobile gaming space and it's just very relevant.
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B
Right.
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A
And it's, you know, it's I, I think like in, in sort of.
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B
Oh, it has its problems too. There's trade offs in COPPA too.
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A
But yeah, no, I totally. But I mean, I, I, I guess, you know, the sense was the companies that I worked at, like, we always endeavored to go further than COPPA because we just wanted to protect children. It wasn't, you know, it wasn't a burden necessarily. It was a, it was something that, because it's the right thing to do, it just seems like the sort of these cases and again, this is from like a layman's perspective, but if you're anchoring this to the child protections angle, but you're using this very sort of like broad brush in painting these totally ubiquitous mechanisms as addictive, then you're kind of like you either went after the biggest platforms just because they've got a lot of money, or you're actually more focused on the mechanisms than you are protecting children. And so like either of those, it feels like it's just not how you'd pursue this if you truly had the intent of remaking a system that you felt was disproportionately damaging to children.
- [28:21]
B
I think you're right. I think for litigators, both private plaintiffs lawyers and even state AGs. When you have a hammer, everything looks like a nail. So they use the tools that they're familiar with and they have at their disposal here to go after the deep pockets and quite frankly, entities that don't have the best PR right now, and that's the ones they focused on, perhaps instead of going after the worst actors first.
- [28:51]
A
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- [30:00]
B
But.
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A
But is that a potential outcome of this?
- [30:03]
B
Yeah, not only that, but even in the bullying context. Right. So I think social media companies will be extremely cognizant of speech that could cross the line in both cases. And what I'd say is the law on true threats under the First Amendment actually limits what prosecutors or the law itself can do. But the fear of liability will likely lead to removal of a lot of protected speech. And this could include things like inside jokes, satire and other things that wouldn't amount to true threats or harassment because of the difficulty of an algorithm, even a third party person, to understand that specific context. For example, I used to be a public defender and I once represented a young man who was picked up for public drunkenness, who had a long history with a set of particular small town cops. And he threatened both officers in colorful and wild language. Right. But the jury only convicted him of one of the counts of terroristic threats. I was able to successfully argue that one of the sets of threats was actually protected speech because they were not objectively capable being taken as true threats, like, they're just wild things that somebody was yelling. But the other charge against the other cop was considered a true threat because the defendant mentioned where the cop lived, the age of his daughter, he gave some personally identifying information. It's just he actually might mean that one. Right? Online platforms are unlikely to make these fine distinctions. If the underlying liability for, like, bullying. Right. Starts to extend to them, both the protected and unprotected speech will likely just be removed. We see this in cases outside of that context, even like when government officials don't parody or satire that's targeted at them. They quickly just label it misinformation, and they even put pressure on social media companies to take it down. So it'd be one thing that these platforms were making these moderation decisions as private entities responding to market signals, whether they just don't like anything that looks like it could possibly be harassing or bullying or even too contentious, debating, whatever. But it's quite another if what drives our decisions is actually state action under the threat thereof. Under the First Amendment, private actors and not the government are supposed to drive editorial decisions. We call it the marketplace of ideas. Right? So we want social media companies to remove things because they see it as the right thing to do. Like you were talking about earlier when you guys were dealing with COPPA type issues, you really just cared about children's safety. You might even felt like there's a market demand for that. That's a very different thing than being like, well, if we don't do this, we're facing the threat of litigation or regulation on this or other issues aren't even related to this that are just trying to harm us. So therefore, we're just going to do whatever government officials ask of us, whether explicitly or in back rooms, to avoid more scrutiny.
- [32:58]
A
So if I'm understanding correctly, you're saying that the idea here is that if there is this potential for liability, right, like the nuance that's available in a jury trial is not available in a quick millisecond algorithmic decision. And so it just ends up. You just end up excluding a lot of speech because it's not worth the headache of the potential liability. And some of that might just be totally valid speech. But if there's any possibility that it could, could, A, if there's any possibility that could get classified as something that would open up the company liability, and B, if it's just impossible for the algorithm to make that distinction, then it's just going to end up getting jettisoned.
- [33:34]
B
Yeah, yeah. I mean, whether we're talking about bullying or defamation. Right. That was my other example. Like if the algorithm can't tell the difference between a Babylon B article, Right. Which is satire and a true claim that's defamatory, then they're just going to pull them both down based upon somebody saying that that defames me or especially if it's somebody that's powerful or a public official. That's the world we could end up being in if these platforms could be held liable for third party conduct. That's what session 230 is supposed to prevent, literally. But that's the world we could end up being in if that's not the case anymore.
- [34:11]
A
Yeah. And the misinformation angle is particularly worrying to me because that just feels like it's just defined by who's ever in office. Right. I mean, like that. Or that's. That's how it would end up. That's where you end up if you get rid of section 230 if. Because misinformation as a term doesn't mean anything.
- [34:32]
B
It can in very limited circumstances. Right. And our First Amendment law has made them very limited indeed under the defamation context primarily. Or like you pretend to be an officer and you're not, like those are the types of things we're talking about. Or you perjure yourself in a courtroom. Otherwise you're pretty free to say whatever you want because a lot of things are in the end opinion. But you're also free to some degree to lie. Most people don't, you know, it's not moral thing to do. But legally there's a Supreme Court case where a guy lied about being, you know, a guy that was a. Some kind of metal recipient in the military. There was a law on the Stolen Valor act that made that illegal in and of itself. And the Supreme Court actually said that went too far. That was a violation of the First Amendment. They had to be limited to situations where you lied to get some kind of maybe government money because you were a recipient or something like that. Right. Otherwise counterspeech is the answer to misinformation, not the government censoring anybody. So yeah, there is a threat when you add the layer on top of that of online speech platforms potentially being liable for people posting misinformation, whether intentional or not. Because now they have to be cognizant of what you're saying. And if they're cognizant of what you're saying, they may well just remove It. If it doesn't seem like it's right to somebody that's powerful.
- [35:50]
A
So where do we end up if that's the case? Because it seems pretty scary. Let's say that the appeals are unsuccessful. So, a, would that mean that we've reached the end of the broad platform immunity, We've reached the end of section 230? And then B, what is a result of that? Is that just people are only posting recipes. What's left? What can you post? Because if these protections are undertaken by these platforms to just avoid any risk of litigation and it feels like they're gonna. A lot of speech is gonna get excluded.
- [36:27]
B
Yeah. I mean, if appeals courts don't reverse or limit these rulings, I think free expression online is in trouble. Not only will there be more litigation, but policymakers who have long wanted to do more will be emboldened to regulate more. Most distressingly, though, is that the threat of litigation from government actors at the federal, state, and even local level could allow for a lot of backdoor regulation that never receives proper public review. Backdoor censorship could become the norm if social media platforms increasingly feel the need to change how they do business to stay on the good side of regulators. Even without actual legislation or public administrative action or an actual lawsuit, just a raised eyebrow could suffice. Increasingly, in light of the new world that we're in, the lesson of Murthy versus Missouri, which is the Supreme Court case, I believe is last year, maybe the year before now, is that social media companies, if they're not willing to challenge the coercion of government themselves, those whose speech is ultimately effective, might not have standing to do so. That's what the Supreme Court kind of ruled in that case. So backdoor censorship, especially that done in the name of protecting children, could increase here just the threat of being sued under consumer protection laws, as all these states are doing now, could be enough to be like, okay, what do you want us to do? You know? And it could be even on things unrelated to children protection. What do you want us to do so you don't sue us? And that might not even come to the light of day. Right. Like, it doesn't have to file suit for that to happen. So in some, my hope is that appeals courts will get these cases right and that other courts won't be allowed to go down the same path. Because while juries certainly have their place in finding the facts, the judges have to get the law right. If they don't, I think free speech is in trouble online.
- [38:09]
A
I guess what's the scope too, because it's not just social media. Right. Like we've been talking about. I mean, this ends up applying to the entire consumer Internet, right?
- [38:17]
B
Yeah, I mean, it goes way beyond social media if it becomes about algorithmic recommendations automatically making you liable for whatever speech that we're talking about. So, you know, search, YouTube, and we're not even just talking about the social media aspect of it, but literally like, you know, what video you see next, Netflix and all those streaming services, your podcasting service, anything that involves a like or a share or retweet or anything like that, all these things are going to be implicated. So it could be disastrous not only for just speech, but just for how we do things online that we've come to accept. Things would have to drastically change, I would think.
- [38:59]
A
Right. And then to your point, I mean it's, it's not even, I mean it's the threat, right? I mean it's like all these companies need to sort of realign around the risk. And that's, you know, like you said, I mean, everything is algorithmically curated now or has a like or as a share or whatever. And so you're talking about Amazon, Netflix, Spotify. I mean like any, any product that you use does that.
- [39:19]
B
You know, Amazon's a great example that you'd have to think through in the particulars because obviously when you're buying something, it's a little bit different than a speech platform itself. But if we're saying every time that they give you a recommendation for a new product based upon your prior buying history or search history on the site, they're not liable, no matter who the third party is for what their product is, if it's defective or whatever, that could be a real problem. Right. They might have to change because everybody's already complaining already that Amazon's doing a lot of first party selling that's in competition with its third party sellers. Well, if that's the world we're in, then not having third party sellers at all might increasingly be in their interest. Right, so. And that, that again is it might be bad for consumers, but it's certainly bad for those companies. Small business.
- [40:06]
A
Well, what I mean, that's a good. What I minded was the reviews. I mean, that's just people writing there and reviews too.
- [40:11]
B
Yeah, you're a good point. Yeah.
- [40:12]
A
And those are sorted. Right. You know, and I feel like the big maybe elephant in the room that we haven't talked about is just chatbots, AI. I mean, then what happens there? I mean, if there's this responsibility here, I mean, like. And you think of, you know, algorithmic curation or optimization as a tactic that. That is not protected. Well, that's essentially what I mean, chatbot is doing.
- [40:37]
B
Yeah, yeah, yeah. LLM chat bots are going to be really interesting. And I've actually written in the past, I don't 100% think that chatbots would receive Section 230 immunity because they seem to be more, to me, to be more analogous to, like when you or me reads a whole bunch of stuff online and then integrates all that information into new speech, it seems to like it might be their own speech to some degree. There still will be questions about whose speech it is exactly. In individual cases, like when people try to get LLMs to say specific things through their prompts over and over again at some point, what does that. When does that become their own speech, especially when they republicize it and whether that's the LLM speech at that point of their own, A lot of questions will still rise. But I think a lot of those questions are going to arise more under the First Amendment context than the Section 230 context. So, in other words, how does new laws that we're creating or even old products liability laws interact with the First Amendment rather than Section 230? And it'll be an interesting question if you end up saying something defamatory because an LLM told you to or answered wrongly. Maybe both of you will be liable to some extent. I'm not sure there's going to be cases that work themselves through the system for that, but for a lot of other things that aren't outside of First Amendment protection, but our protected speech, I think it's going to be hard to hold either the chatbot or the person that's interacting with the chatbot liable for those things.
- [42:05]
A
Ben, thank you. This was fantastic. I'd point to everyone, to the article that you wrote on Truth on the Market. It's called treating speech as a Bug, not a feature. I'll link to that in the show Notes as well. But I found it to be very informative and I'm sure our listeners will as well.
- [42:18]
B
I really appreciate it if they would like to. If they look up my profile and ICLE's website, we have a whole lot more of where that came from, whether it's on the Truth in the Market blog. I've also done some amicus briefs in cases like the two jury trials and some others, as well as regulatory comments and white papers and so forth. So if anybody's interested, we have way more.
- [42:37]
A
Cheers. Ben, thanks so much for your time and have a great weekend.
- [42:40]
B
Thank you. Appreciate the time.