Ep. 267: Social media = cigarettes?

Summary

So to Speak: The Free Speech Podcast — Ep. 267: Social media = cigarettes?
Host: Nico Perrino | Guest: Mike Masnick (CEO & Founder of Techdirt and Copia Institute)
Date: April 1, 2026

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Overview

In this episode, host Nico Perrino sits down with Mike Masnick to unpack two landmark jury verdicts holding Meta and YouTube liable for alleged harms to minors from social media platform design. They dive deep into the legal doctrines of free speech and Section 230, the popular “social media = cigarettes” analogy, and what these rulings could mean for both big tech and the future of open online expression. The discussion critically examines the separation of platform “design” from “content,” the role of internal company documents in litigation, and whether these cases pose an existential threat to the current Internet ecosystem.

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Key Discussion Points & Insights

1. Background of the Verdicts (00:18–02:07)

• Case Summaries:
  • California: Jury awards $6 million to “KGM,” a minor who argued design features—not content—of Meta’s platform fueled her addiction.
  • New Mexico: State wins nearly $400 million against Meta for failing to protect children from predators.
• Both verdicts focus on platform design as a source of harm, deliberately sidestepping free speech (First Amendment) and Section 230 defenses.

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2. Problems with Meta & Big Tech (03:25–05:49)

• Masnick’s Critique:
  • “Meta is a terrible company that has spent years making terrible decisions and being terrible at explaining the challenges of social media trust and safety.” (03:25, Masnick)
  • Meta’s approach undermines the open Internet, grows at all costs, and avoids building better, more competitive, user-empowering alternatives.
  • Criticizes lack of firm, principled stances, especially on free speech.

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3. Principles and Consistency in Content Moderation (05:00–07:21)

• Example of Meta’s shifting stances:
  • Mark Zuckerberg apologized for content policies on the Joe Rogan podcast and later shifted blame to government pressure—only to offer censorship help to Elon Musk days later.
  • “The idea that he has a principled stance I think is seriously undermined by just that one example.” (07:02, Masnick)

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4. Why the Verdicts Frighten Free Speech Defenders (08:35–10:32)

• Implications for All Platforms:
  • The precedent allows lawsuits over “design” decisions if harm can be loosely tied to feature use, opening the door for liability to anyone who hosts, displays, or recommends third-party content.
• Masnick warns:
  • “These two verdicts should scare the hell out of you… what they will enable will impact every website or every situation where users might figure out how they want to display someone else's content.” (08:35, Masnick)

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5. Separating Design from Content (10:32–16:10)

• Typical arguments:
  • Plaintiffs claim features like infinite scroll, autoplay, notifications, and algorithmic feeds are addictive “by design,” distinct from the content itself.
• Masnick counters:
  • Those features only “work” because of engaging content. “If all the videos on Instagram were paint drying, do we think that infinite scroll would matter?” (12:21, Masnick)
  • Draws analogy to bookstores, TV, and newspapers—every content medium employs “addictive” design elements to engage users.
  • Warns that this logic could be used to regulate everything from grammar and brevity tools to layout and formatting.

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6. Addiction vs. Bad Habits: What the Science Shows (12:21–16:10)

• Recent studies: While many think they’re addicted to social media, only a tiny minority meet clinical criteria for addiction—most have manageable bad habits.
• Key point: “If you call something that is just a bad habit an addiction, it actually makes it harder [to address].” (14:55, Masnick)

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7. Content Recommendation Algorithms & User Experience (16:10–19:54)

• All content platforms (online and offline) aim to keep users engaged—this is not unique to social media nor newly dangerous.
• Writing styles, newspaper layouts, and even app UX are all optimized for retention—which is only possible because users enjoy the content.

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8. The Impact of Internal Documents in Litigation (21:44–28:53)

• Internal concern memos at Meta are used as “smoking gun” evidence, but Masnick argues these internal debates are essential to building safer products, anticipating both the upsides and trade-offs.
• Danger: Using such documents against companies discourages open discussion and product improvement.
• Encryption example: Meta’s roll-out of end-to-end encryption is cited as harmful in lawsuits, even though it protects huge numbers of people (e.g., from domestic violence).

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9. The Free Speech and Section 230 Angle (29:40–35:59)

• First Amendment context:
  • U.S. law doesn’t create broad new “harmful to minors” exceptions outside obscenity or established categories (defamation, incitement, etc.).
  • The courts in these cases denied First Amendment and Section 230 defenses at the earliest stage—letting the case go to a jury solely as a design defect matter.
• Section 230 primer:
  • Shields platforms and users from liability for third-party content. Designed to nurture vibrant online speech communities, not just for “neutral” platforms.
  • Preemption: State laws can’t override Section 230.
  • Without early dismissal, even defending a suit is ruinously expensive for anyone but the largest companies.

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10. Competition & Small Players (35:59–37:24)

• Removing or blunting Section 230 disproportionately insulates incumbents (Meta, Google) while making it impossible for startups to operate.
• Masnick: “If we don’t have full protections of Section 230 working, we have the opposite of [competition].” (36:28, Masnick)

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11. Addressing Common Criticisms of Section 230 (37:24–39:33)

• Section 230 isn’t a “special carveout for big tech”—it equally protects users, small websites, and the retweeting of content.
• Newspapers and similar outlets already benefit for third-party content (e.g., comments sections).

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12. What If Section 230 Didn’t Exist? (39:33–40:59)

• Masnick argues we’d revert to a heavily moderated, TV-like environment. Without such protection, open, user-driven community platforms would be rare.

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13. Contradictory Policies and Legislative Rhetoric (40:59–42:51)

• Many conservatives rail against “censorship” but simultaneously seek to remove Section 230, misunderstanding (or willfully ignoring) its operational effect.

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14. The "Social Media = Cigarettes" Analogy Debunked (43:10–46:11)

• Cigarettes are a chemical harm with direct, proven causation—speech is not.
• Comparing the regulation of speech-based platforms to the regulation of toxic substances is “ridiculous… an emotional comparison.” (43:31, Masnick)
• Marketing restrictions for cigarettes are historically regulatory settlements, not clear First Amendment exceptions.

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15. Platform Incentives, Public Opinion, and Long-Term Outcomes (46:11–48:10)

• Legal incentives are just one force; user demand and advertiser pressure also guide platform behavior.
• “Enrage to engage” content is bad business long-term, and companies have already retooled algorithms to avoid such pitfalls.

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16. State of Social Media Harm Research (48:10–51:11)

• Multiple massive studies (UK, Australia) show no strong evidence that social media causes inherent harm to teens; it is likely beneficial for many.
• Some high-usage individuals suffer, but causation likely runs toward social media from pre-existing trauma, not the reverse.
• Plaintiffs and supportive voices who benefit from platforms are absent from such lawsuits.

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17. Implications for Adults, Privacy, & Age-Gating (53:00–54:43)

• The legal theory applied to minors could easily extend to regulating all users, including adults—particularly endangering privacy (by undermining encryption) and requiring intrusive age/ID verification.

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18. Parenting, Technology, and Responsibility (55:08–57:59)

• Parental education and gradual introduction to technology offer a sensible risk-mitigation pathway.
• “You don’t send a child who is not prepared to go downtown… You teach them how to cross the street.” (56:37, Masnick)

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19. Is This an Existential Crisis for Social Media? (57:59–58:58)

• Masnick’s conclusion:
  • “It will change social media in very dramatic ways, in ways that we can't quite predict, but ways I don't think we will be happy with. I think it really is an existential moment for the Internet, for the idea of an open Internet where free speech is enabled and encouraged.” (58:31, Masnick)

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Notable Quotes & Memorable Moments

• “Meta is a terrible company… But that doesn’t mean that I think any lawsuit that goes against them is therefore a good result.” (04:48, Masnick)
• “If you care about free speech online, these two verdicts should scare the hell out of you.” (08:35, Masnick)
• “If all the videos on Instagram were paint drying, do we think that infinite scroll would matter?” (12:21, Masnick)
• “Addiction is... overpowering for you. Whereas just having a bad habit, there are lots of things you can do to fix those habits.” (15:05, Masnick)
• “Cigarettes are not speech. That’s the simplest version of it.” (43:31, Masnick)
• “Section 230 is not a special carve-out for big platforms. If it is a carve-out, it is a carve-out for users of the Internet.” (39:11, Masnick)

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Suggested Timestamps for Key Segments

• Case overview and design vs. speech — (00:18–10:32)
• Section 230 and First Amendment deep dive — (29:40–35:59)
• "Social media = cigarettes?" analogy — (43:10–46:11)
• State of harm research & the missing context of positive uses — (48:10–51:11)
• Existential threat & concluding thoughts — (57:59–END)

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Tone & Language

The conversation is candid, nuanced, and analytical, often mixing legal and philosophical argument with plainspoken skepticism about both big tech and regulatory overreach. Both speakers remain committed to open Internet values, while also recognizing the real-world challenges and public anxieties that fuel cases like these.

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For listeners seeking to understand what’s at stake in the new legal push against social media “addiction,” this episode offers a comprehensive, jargon-free exploration—balancing law, research, and the enduring messiness of free speech in the digital era.

Transcript

[Nico Perino]

I do want to ask, and I'm derelict in my responsibilities here as a host, that it took me 45 minutes to get to this question. But what about the comparison of social media to cigarettes? That's the one I'm hearing all the time as I'm debating this online. What do you mean?

[Mike Masnick]

Somewhere I read of the freedom of speech.

[Nico Perino]

You're listening to so to Speak, the free Speech podcast, brought to you by fire, the foundation for individual Rights and expression. Welcome back to so to Speak, the Free Speech Podcast, where every other week we take an uncensored look at the world of free expression through the law, philosophy, and stories that define your right to free speech. I'm your host, Nico Perino. Last week, juries in California and New Mexico delivered seminal verdicts holding Meta and YouTube liable for failing to protect young users from harm. In California, a 20 year old plaintiff known by her initials, KGM, argued that it wasn't social media content that contributed to her mental health issues, but rather how the platforms were designed. She testified that using social media as a teen became an addiction that worsened her mental health problems. And the jury agreed, awarding her $6 million in damages. In New Mexico, the state secured nearly $400 million in damages after accusing Meta of failing to protect kids from child predators. Both verdicts found that the companies were negligent in the design or operation of their platforms and that each company knew their platforms could be dangerous when used by a minor. Absent from these verdicts was a consideration of the First Amendment's free speech protections, as well as Section 230 of the Communications Decency act, which is the 1996 law that provides a liability shield to interactive computer services that host third party content. The courts found that the design elements of the platforms could be separated from the content hosted on the platforms, thus removing the need to consider the First Amendment or Section 230. Joining me to break down the rulings and their possible free speech implications is Mike Masnik, CEO and founder of Tector and the Copia Institute. Mike, welcome back onto the show. It's been a couple of years.

[Mike Masnick]

Yeah, it's been a while. I was trying to remember how long it's been. I can't. I'm not even sure, but I'm glad to be here.

[Nico Perino]

I think you were one of my early guests and this podcast has been going on now, I think, think it'll be 10 years, actually in April. So it was probably, I don't know, 2017, 2018, 2019 that I had you on.

[Mike Masnick]

Okay.

[Nico Perino]

It's been a Beat.

[Mike Masnick]

Yeah. Yeah.

[Nico Perino]

Well, your name came up in my news feed on social media recently because you have an article that's circulating among free speech circles and that we circulated within Fire and the headline for that article is everyone cheering the social media addiction verdicts against Meta should understand what they're actually cheering for. And I think for a lot of people in our community it was really clarifying because there was this debate over the verdicts and, and what free speech implications, if any, they had. And your article does a really good job of laying that out. But you begin this article by pulling no punches against Meta. You said Meta is a terrible company that has spent years making terrible decisions and being terrible at explaining the challenges of, of social media trust and safety. You don't really dive into that too much. You have a bunch of links that I'm assuming give you the context there. But for our listeners, what problems do you have with Meta? We'll talk about that before we get into the problems with these verdicts as you see them.

[Mike Masnick]

Yeah, I mean, how much time do we have? I tend to think it's not a very good company. I bet it is run thoughtfully. I don't think it is run in the interests of the wider Internet. And I am at heart a believer in having a wide open Internet that enables more speech and enables more empowerment of different users online. And I find most of, not all, but most of Meta's products to be antithetical to that. Some of the decisions that they've made about how they exist and how they contribute to the open Internet and how they interact with other players have done a lot of damage to the open Internet. And I think that in their pursuit of know, pure growth without thinking about the long term consequences of what they're doing, I think they're undermining their own ability to, you know, I think they rely on the open Internet. They're built on and based on the open Internet and they've made a bunch of decisions that I think are really damaging to that, both in terms of how they roll out their products, but also their policy and legal decisions. And so I'm no fan of the company. I think in an ideal world, you know, its products would become much smaller. I don't think they need to go away, but I think that there should be much broader competition against them and better services that, you know, that put more power in the hands of users. So I, you know, I just don't, don't really think very highly of them. But, but that doesn't mean that I think Any lawsuit that goes against them is therefore a good verdict or a good result.

[Nico Perino]

Well, the problem I have with the company is it doesn't seem to have any fixed principles. So you had Mark Zuckerberg go on Joe Rogan and apologize for their content moderation policies over the past couple of years, which were in keeping with the general climate of social media content moderation over the past couple of years. And then Trump gets elected. There's a vibe shift. And Mark Zuckerberg apologizes and also blames the government for some of that content moderation. You know, in the free speech world, we tend to most admire those people who stand on their principles when they're most challenging to, to defend. And often that's in environments where you are being subjected to threats of, of regulation or punishment one way or another. It's very easy to take a principled stand on something when everyone agrees with that.

[Mike Masnick]

Yeah, yeah. And, and, you know, and that you're. You're exactly right that I think there are very few principles at work there. The funny thing is, and this just came out in the last few days is that literally 24 days, I counted this 24 days after Zuckerberg went on Rogan to talk about how he was now, you know, he had learned his lesson and he wasn't going to take pressure from the government to remove any content.

[Unidentified Guest]

We got to this point where there were these things that you just, like, couldn't say which were mainstream discourse. Right. So, you know, it's like Pete Hegseth is going to, you know, probably be defending his nomination for Secretary of Defense on, on the Senate floor. And I think one of the points that he's made is that he thinks that women shouldn't be able to be in certain combat roles. And until we updated our policies, that wouldn't have been a thing that you could have said on our platforms because it would call for the exclusion of a protected category of people.

[Mike Masnick]

He texted Elon Musk, who was then, you know, a powerful government official, saying, basically, you just let us know if you. Anyone says anything bad about Doge, and we'll take it down. So it's one thing I did see that.

[Nico Perino]

I did see that. I didn't realize it was right after he went on Rogan, though.

[Mike Masnick]

It was 24 days. I counted. Wow. And so the, the idea that, that he has a principled stance, I think is seriously undermined by just that one example, and I could come up with many more of his lack of direct, real principled support for free speech like that.

[Nico Perino]

Well, the challenge with being a free speech advocate is you're often defending unpopular speech and unpopular speakers. Both of those are at issue in these two verdicts, I should say. We often spend our time here at FIRE defending the free speech rights of people who, if they were in power, would limit the free speech rights of others. This goes back to the Seminole Skokie case, when the ACLU defended the Nazis. You know, a lot of the Communists in the 20th century wanted to limit free speech rights. I interviewed David Cole, the former legal director of the aclu, who talked about when he was litigating the Texas v. Johnson case and representing the Revolutionary Communist Party in its appeal to the Supreme Court to protect flag burning as protected speech. He said that the Revolutionary Communist Party kind of muted his rhetoric around the First Amendment because they didn't totally buy in to everything that the First Amendment protected. So it's not just those who defend free speech who get free speech rights. And, and sometimes us who are defending free speech rights need to recognize that. Nevertheless, you write in the second paragraph of this article here that if you care about free speech online, these two verdicts should scare the hell out of you. Why does it scare the hell out of you here?

[Mike Masnick]

Yeah, I mean, it's really looking at what it means, and I again, don't really care what it means for meta, but the rulings apply to lots of other sites and the way that they're, you know, they're verdicts, they're jury verdicts. But what they imply and what they will enable will impact every website or every situation where users might figure out how they want to display someone else's content. If you have your own, if you put up your own website, if you're, you know, even in some cases sharing email could, could come into play with these kinds of things. The impact here is basically saying the way that content is displayed suddenly could make you liable for any harm, any downstream harm that might come from that, that content, even if it's a fairly tenuous connection. So that opens up a field day for lawyers to sue. All sorts of people had nothing directly to do with the harm, if there's any harm downstream. And, you know, there, every. There's people have lots of different opinions about plaintiffs lawyers and tort law and you know, what kinds of things that you know is good for and where it might go overboard. But this really just throws open the floodgates and says if there's any harm, find any kind of online service that this person used that you can somehow tie even very loosely to that harm from content that they had nothing to do with. They were just displaying, they were hosting or showing or recommending in some way. And you can argue that it was a design fault and that you're not suing over speech because the speech is First Amendment protected, but the design choice itself is somehow, it's a, you know, it's a, it's a way to route around the First Amendment.

[Nico Perino]

Yeah, well, well, let's break that down a little bit because I think if you're someone who's just reading the headlines here, you're not steeped in First Amendment doctrine, you're not familiar with Section 230, you might say, okay, I do feel like social media is addicting and I do feel like some of the design elements of social media are addicting and that that's. That can be separated out from the content of the speech. Right. I actually saw a pretty good summary of this argument from Brandon Goral, who works for the tech news show TB pn, who summarized the plaintiff's arguments in the California case. The two separate cases, he summarized them this way. In the case, the plaintiff's lawyer, Mark Lanier, argued that Meta and YouTube built digital casinos that use neurobiological techniques similar to those employed by slot machines. The jury found that specific features ofMea and YouTube are designed to be addictive. Infinite scroll creates an environment where there are no natural stopping points. Algorithmic recommendation feeds users highly engaging content. Autoplay removes users agency in choosing whether to watch the next video. Notifications pull users back in by exploiting their need for validation. Instagram's beauty filters contributed to the plaintiff's body dysphoria. Features like the like button exploit users biological need for social approval, etc. Etc. Etc. You can see there that there's not a lot of talk about the specific content that those design elements are working for, but just the kind of design of how this content gets fed you. That's what the plaintiff's lawyer is arguing can be regulated and can be separated out from the speech considerations of the First Amendment and the liability shield of Section 230. How do you respond to that?

[Mike Masnick]

Yeah, I mean there's a few different things. I mean the biggest point, and I know this, this got some play because of the article I talked about. You know, let's separate. If you try and separate the content from the design, see what happens if you use that those same product design features with content that is not particularly interesting. And the example I used was paint drying. If all the videos on Instagram were paint Drying. Do we think that the Infinite scroll would matter? Do we think that the notifications would matter? Do we think the autoplay would, would drive people to just keep going back? It is not those features that are doing it. It is the underlying content and recommending or encouraging people to see content that they find appealing and interesting. You know, it's tough to say that that violates the law because everyone does that. You walk into a bookstore and there are books on the shelves in front of you on the, you know, they have special table displays set up. Is that trying to addict you to a book? I don't think so. And you can say, well, that's different, that's a one off thing. But over and over again, as you try and break these things down, what you're really coming back to is the underlying content is the thing that is driving interest. And there are concerns like, I mean, everybody has this feeling of like, you know, sometimes I use my phone too much and I would like to put it down. But there's a difference between, you know, doing too much of something and having a habit that is not healthy for you than being addicted. And this is actually a really important distinction. There was a study that came out, I think it was in November, just a few months ago, that really tried to look into this whole question of social media addiction and, and had looked at, you know, they actually asked people how many people thought they were addicted to social media. And I don't have the exact numbers in front of me. I think think it was like 39 or 40% of people said they were addicted to social media. And then they went through this process to actually test that. And there are ways, I don't understand this, this is not my field, but there are ways to test, you know, are you showing signs of addiction? And I think it includes things like withdrawal symptoms. If it is taken away from you, you know, do you have symptoms of withdrawal that, that, that are damaging and harmful? And in that case they found it was a very, very small percentage. I think it was under 4%. So maybe 10% of the people who actually thought that they were addicted to social media actually showed signs that they really were. And so they were saying for most of the other people it's maybe just a bad habit. And lots of us have bad habits. But you treat habits or how to change habits very differently than you treat addiction. And there are lots of tips and tricks and ways to change the habits that you engage in if you have bad habits. Lots of us do. But, but there are ways to deal with that that are very different than addiction treatment. And the concern in this study, which I thought was really interesting, was that if you call something that is just a bad habit an addiction, it actually makes it harder because one, you sort of give up and you're like, well, there's nothing I can do. It has overpowered me. Addiction is something that is, you know, by sort of definition, overpowering for you. Whereas just having a bad habit, there are lots of things that you can do to fix those habits. But if you think it's an addiction rather than a habit, you know, it leads to bad places. And in fact, part of what that study said was that the media discussion of social media addiction was causing more people to think they were addicted and therefore not making an effort to fix bad habits. And so in some ways, it was the media discussion of it was probably making the problem way worse than any actual, you know, features of. Of social media addiction or bad habit forming.

[Nico Perino]

Well, I mean, I have this bad habit where when I'm watching a really good television show and an episode ends on a cliffhanger and you're watching Netflix and they dump all the episodes at the same time, and you can keep watching through the. To the end of the season, I have this bad habit of staying up late into the night and not being able to pull myself away from that show. Now, I've made this argument. Many other people, people have made this argument as well on social media, and people don't seem to buy it. But there's always this desire among content creators and people and institutions that host content, be they newspapers or Netflix, to try and make their content more appealing. Yes, the way you lay out a newspaper is often done to keep people reading.

[Mike Masnick]

Yes,

[Nico Perino]

Writing is even. I mean, that is a technology. Language is a technology that over the years, we learned how to make more appealing to get people to keep reading on. I mean, when I go to Rome, for example, and I see Latin, it used to be that you would have these big texts of words in like, one long paragraph with no spaces between the words, with no punctuation, with no paragraph breaks. I mean, that was a technology that was invented over the years in order to make it easier for people to write. And Axios has revolutionized this in a certain way. They have their smart brevity tool to make content more easily digestible. If you're saying that the way content is delivered is separate from the continent itself, I mean, you could regulate just grammar and spelling, and you could regulate. I mean, I'm taking this to absurd Lengths. I mean, you could regulate smart, smart, smart, brevity. And I mean, you can regulate here, according to the judge who dismissed some of these arguments, the way the content's delivered, I mean, is that, is that, is that extreme, stupid argument?

[Mike Masnick]

No, it's not, right? I mean, I've certainly gone through the experience of reading a book that each chapter ends on a cliffhanger. I'm like, ah, just one more, just one more. And staying up late into the night. But there is this, this sort of different, this feel that people have that, oh, it's different once it's on the computer. And I think it's the newness of the, on the computer or on the Internet that, that sets people off. But, you know, as soon as you start to go down this path, it's an incredibly slippery slope of saying, well, you know, if you're getting people to stick around and consume more of that content, that is now a design choice and has nothing to do with the, the, the content and therefore is not protected by the First Amendment. I think it opens up all sorts of really, really dangerous downstream effects. And it's like every website, not just Meta and Google and whoever else, every website is looking for ways to, you know, have people spend a little bit more time to enjoy the, you know, the knitting forum that you're on or the discord server that you're, you're talking to your friends in.

[Nico Perino]

There are whole companies that are set up to help look at a website's user experience and help improve it so people stay on the site longer. And it's often done with the intention of people finding content that they want to find. And I think that's one of the things that people miss about these recommendation algorithms in particular, is that they are taking your past interests, the things that you've looked at in the past, the content you've spent the most time with, and trying to find other content posted by other users that you might be interested in that match those previously demonstrated interests. These algorithms, as you say, wouldn't work if it weren't for the content and assessing your interests. And those are all, those are all First Amendment free speech considerations.

[Mike Masnick]

Yeah, absolutely. And, you know, I understand where there is like this sort of internal, instinctual fear that a lot of people have, which I fully understand is that, you know, a lot of these, especially companies like Meta and Google, are very big companies that have very powerful teams that spend a lot of time trying to figure out, like, how do we, you know, how do we do that better than anyone else? And that for an individual, I can, I can see the sort of powerlessness feel that you have. You say, well, how can I push back against this? We have this big company that is doing all these, you know, these things. But, like, that's also the society that we live in. You know, we've always had, you know, magazines and TV shows that try to keep you watching like that. That is part of culture. And it's the kind of thing that I, I actually think that, you know, is. Is where we should be thinking about in terms of education, educating people how to use these things better and how to push back and how to teach people how to have more control over their own digital environment and how to use tools that give them more control. Because there are tools out there that will help you. There are tools that tell you how much screen time you're watching or even cut you off. Or, you know, the one that I know a lot of people really like, I haven't tried this yet, but a lot of people really like is one that turns your phone screen into grayscale. And somehow that, you know, gets people to maybe not spend as much time. But it's, you know, this idea that, you know, it should be, you know, there are a number of different factors here that we can deal with. The potential downside issues that some people have and having trouble putting down their devices or shutting their laptop or whatever it might be that don't involve regulating speech. And these lawsuits in particular were really about regulating speech.

[Nico Perino]

Well, Mike, what do you say of the internal documents that were revealed that Meta knew about these harms, particularly to minors? Because those didn't look good. I mean, that's not a great, that's not a great image to sell.

[Mike Masnick]

Yeah, and those were like incredible headlines and people were talking about a smoking gun. And you had these reports where people internally at Meta in particular were saying, you know, oh, you know, this is going to be dangerous, there's going to be harm. And so people are saying, oh, you know, the narrative is really easy, especially for the media, saying, oh, Meta knew that this was harmful and they did nothing. The reality is, is that is pretty different when you begin to look at it, which is all of these companies, especially the big companies, do have trust and safety teams. And I know that in some circles, like the whole phrase trust and safety is like really scary. And people think, oh, it's the censorship team. No, you know, it really is about, like, how do we build a safer product that people trust and feel comfortable with? And part of what those people do and some of them, sometimes they're researchers, sometimes they're, you know, lawyers, communications people, all different kinds of roles is to think through the potential downsides of this. And then the company has a discussion and they weigh the different trade offs. And so what was quoted in these things were, you know, just bits and pieces of concerns that people raised, which is what you should want. You should want companies like Meta to have people internally who will raise concerns that allow the company to then weigh those concerns against concerns of others. And if you only hear one set of concerns, then it can look really bad. So just as an example, you know, some of the concerns we're saying, oh, you know, you know, this kind of content, you know, sucks people in and they keep, they, you know, keep consuming it, keep consuming it. But you know, what you don't see are other concerns that people raise, which is if we're cutting off certain kinds of content. And there's now increasing studies. So the ones that, that I've seen a lot of are on like eating disorder content. So here's, here's, this is an interesting example where eating disorder content, I think most people agree, is probably not very good, not healthy. You don't want to encourage people to have eating disorders. It's a real problem, especially among younger people. Often younger women have real problems with eating disorder content. So there were all these studies that were done, Meta in particular cut off various accounts that were promoting eating disorder content. But when the studies followed up on it, they found that it was more of a demand side problem than a supply side problem, which was that there were people who were really desperately looking for that content. And when Meta cut off the accounts that had that content, they went elsewhere that were less well protected, that had less helpful resources, and sort of, they went deeper into these subcultures and problematic behavior. Whereas when that content was actually on, Instagram was mainly where it was. There were lots of people in there providing help resources, including Instagram. If they saw people were going to eating disorder content, it was pointing them to resources to help. You know, saying like popping up little things. If you have a problem with eating disorder, go here. But even more importantly, where there were other users who had recovered from eating disorders who were going into the comments and, and saying, hey, this is unhealthy, you should look at this, you should think about this, here's a process, or if you want to contact me, I can help you. And so there's an indication that if you jump in and you say, oh, just get rid of eating disorder content, it can actually lead to worse results. Because the helpful bits of that, the one, the people who were helping and the tools that were helping and the resources that they were being driven to go away, and the users then go to more problematic websites with even less controls and less help. And so there are really tricky trade offs to all of this stuff. And those discussions are happening inside companies like Meta. But if you just pick and choose one side of that and you say, oh, one researcher or these researchers raised these concerns and you don't show the other side, which is saying, well, if we cut that off or if we change that, then other people are going to have these other problems and then you have to weigh the decisions. And I'm not saying that, you know, Meta made all the decisions that I would make in those circumstances. If I had to weigh the evidence, I might have come down differently. I probably would have. As I indicated earlier, I don't trust Mark Zuckerberg. I don't trust his decision making. But the fact that you take one bit of these internal concerns out of context like that means in the long run that now every company in Silicon Valley is going to stop having those internal discussions because those internal discussions themselves, when taken out of context, are going to be used against them in court. And you're going to get these same kinds of headlines. You want companies to have people inside to say like, hey, this might be a problem. Even if you later decide like, well, yes, but if we, if we don't do it, then there'll be these other problems. If we weigh the two things against each other, this is the better approach and we can put in some, some changes and maybe make it less of a problem. There's all different ways of approaching it. Everything about this is trade offs. Doing nothing is a trade off. You know, doing something is each thing has trade offs. And what these companies have to do is weigh the different trade offs. And we can all disagree. And I think everybody, you know, everybody would disagree. Like nobody, no two people have the same sense of what is the right level of these trade offs. But saying like, just because someone raises a concern and the company still does, some of it doesn't take into account all the other things and all the, all the other people and the harms that might come from, from making a different decision. And one of the examples in the New Mexico case in particular was the issue of encryption. That was where, you know, Meta for a while was trying to offer end to end encryption in its messaging services, which many of us think is a really important security and privacy device that protects millions of people and their communications and is incredibly important in keeping people safe. Lots of people use encrypted communications to escape domestic violence, to, you know, protect themselves, to, to blow the whistle on things. It's, it's an incredibly important tool. But in the New Mexico case, the fact that Meta offered an end to end encryption and somebody internally had raised a concern that this could be used to, for sharing of child sexual abuse material, that that was used as a, as an indicator that, that they had known about the harm and still went forward with it. But again, there are trade offs here. If you don't have end to end encryption, you're putting millions of users at risk that their messages are at risk, that they can't be secure and they can't be private. And so you have to weigh these things and make different decisions. But you know, in this particular case, what New Mexico was saying was that just the decision to use encryption and have somebody raise a warning about it is evidence of, you know, of them being negligent or careless. And that's really, really worrisome.

[Nico Perino]

Yeah. You write in your piece, if any product improvement that protects the majority of users can be held against you because a tiny fraction of bad actors exploit it, companies will simply stop making those improvements. I, I thought I read somewhere that Meta is actually removing optional end to end encryption for Instagram direct messages. And I think it's, it's going to take effect May 8. So I don't know if that was a result of this case or seeing writing on the wall, but yeah, I mean, if it can be used against you in a court and result in a $400 million judgment, that, that would seem to be a problem. But separate from like weighing the trade off of harms, if you're looking at this from a First amendment perspective, we don't have this like kind of catch all category of accepted speech for harmful speech.

[Mike Masnick]

Right.

[Nico Perino]

I mean, we have defamation, we have speech integral of criminal conduct, we have incitement to imminent lawless action, we have fraud. All of this stuff can constitute unprotected categories of speech. We have a separate category that applies just to minors, which is conduct or content that is obscene as to minors and that generally is porn. But beyond that, we don't have other categories of content that just apply as unaccepted categories of free speech to minors that don't apply to adults. Actually, the Supreme Court had considered expanding the categories of unprotected speech for minors back in a 2011 case where they assessed the harms or alleged harms of violent video games. And the court ended up saying, no, we're not expanding the categories of accepted speech. So just the idea that even some speech might be harmful to some users does not mean that you are excepted from First Amendment protection. And I think one of the challenging things here, Mike, and I'd like to hear your opinion on that, is that in both of these cases, if I understand correctly, both these cases, I believe were in state court, the judges, during the motion to dismiss, or in, I think, California, it's called a demur stage, said no jury. You can't consider the First Amendment. We're throwing out First Amendment protections. We're throwing out Section 230 liability shields when you're considering the company's actions here. So the juries couldn't even consider that the First Amendment might protect these companies from being held liable for these alleged harms. So, I mean, how do you think that was the right decision by the judge? And can you help us explain? We've talked a little bit about the First Amendment here, but this other protection that these companies have when distributing content, and that is Section 230 of the Communications Decency act of 1996.

[Mike Masnick]

Yeah, I mean, there's, there's a lot to unpack there. I mean, you know, the, the idea between, the difference between the judge and the jury is that the judge is supposed to handle issues of law and the juries are supposed to handle issues of fact. And so usually what happens in a, in a normal case, if, if there are such things as normal cases, is that these sorts of lawsuits get thrown out before they ever get to a jury because the judge will look at it and say, say, as a matter of law, these are really attacking First Amendment or should be blocked by Section 230. And just as the quick primer on Section 230, I'm assuming people who listen to your podcast probably have heard, I've

[Nico Perino]

had Chris Cox, one of the authors of Section 230 on the podcast. They should be generally familiar, but we might have some new listeners coming.

[Mike Masnick]

Sure. So, but just as a really quick refresher, the simplest way to think about section 230 is that the liability people, some people say, oh, it just gets rid of all liability. But that's not true. It's just saying that the liability is placed on whoever created the, the, the violation in the first place, whoever spoke the speech that is violative in some.

[Nico Perino]

So if I go on Instagram and I defame you, Mike Masnick, I am liable as the speaker, Instagram isn't liable as the host or publisher.

[Mike Masnick]

Exactly.

[Nico Perino]

Why is that? Why did we create this special statutory protection?

[Mike Masnick]

So, because without that, then you would have no company willing to be an intermediary to host your speech. Because if, you know, anytime there's so much speech that flows through the Internet, and, and I should be very, very clear here, because there's a confusion, a very frequent confusion over section 230 that they think it means that platforms need to be neutral conduits of speech. That is the exact opposite. The law was designed explicitly to allow companies to design their service. However they wanted to cultivate the types of communities that they wanted. You know, the example that I've heard Chris Cox and Ron Wyden both give, those are the two authors you mentioned, Chris, already, is that, you know, you wanted people to be able to create like a gardening community and to say to people like, you know, no politics talk here, because this is just about gardening, okay? And section 230 specifically and explicitly allows that because they're saying, you know, you as the website holder, owner or service, whatever intermediary service, you can make your own rules, and we're not going to hold you liable for the speech that then takes place within those.

[Nico Perino]

So the speech that you host and decide not to moderate, and the speech that you host and decide do decide to moderate.

[Mike Masnick]

Exactly, exactly. So it covers all of that. And the idea is to encourage more entities to be willing to host that speech and to promote it and to share it. And, you know, because some people now are saying, like, oh, well, you shouldn't. It shouldn't apply to al. Algorithmic recommend, recommended speech. But that again, would go against the very principles of 230, which is that it is trying to encourage different services to decide how they want to share content, what content they want to host, what content they want to promote, how they want to display it, which was what was at issue in these cases. And an important part of section 230 is that it is very clear that no state law can override section 230. There's a. What's called a preemption clause. And so in theory, these are state cases. They should have killed these cases at the very earliest stage. The real benefit of section 230 is that they get these cases kicked out at the earliest stage when it is not that expensive, generally. And I think it's important for people to understand this generally, what people say, and I've spoken to a bunch of lawyers about this over many, many years, and they say to get a case kicked out on Section 230 grounds is in the range of 50 to $100,000. It's a lot of money for me, probably a lot of money for you, but, but you know, not so much money for, for a big company. Right. You can get the case kicked out at that stage if you have to go much further. If you have to go beyond that initial motion to dismiss stage. As we just saw with these cases, if you have to go to summary judgment or if you have to, you know, really go all the way through a trial, it's many, many millions of dollars. There are orders of magnitude difference. And even though like a company like Meta or Google can probably handle those expenses, there's a very short list of companies who can handle multiple of those lawsuits.

[Nico Perino]

And this is a point you often make in your writing, which is that this really precludes small companies kind of rising up and competing in this marketplace. If you remove Section 230, Meta, Google or Alphabet, whatever you want to call it, TikTok, these companies can fight this, but upstarts can't. So if you're worried about the monopolistic practices of these people, big tech giants, then you really gotta like section 230.

[Mike Masnick]

And that's, that is like the key thing. Again, like I would like to see Meta not be so powerful. I would like to see there be lots and lots of competitors. I would like to see Meta have way fewer users for their platforms. But if we don't have full protections of section 230 working, we have the opposite of that. Because Meta can handle these lawsuits, Google can handle these lawsuits. Almost every other provider, you know, depending on what size, you know, some of the more mid sized ones maybe can handle one of these lawsuits. But you know, smaller companies can't handle these lawsuits at all. Which means either they don't get into this business at all, they don't exist in the first place, or they're susceptible to any threat of lawsuit. If anyone comes and threatens a lawsuit, you immediately take down the content and the sites themselves no longer have the authority to decide like what kind of site that they want to have and what sort of decisions they want to make. And that's not a good world.

[Nico Perino]

Yeah, and so there are two arguments that I hear in response to this in kind of the broader discourse surrounding the verdicts. One is that, well, why should social media or other interactive computer services companies get this special protection when newspapers don't? Like, for example, someone I was debating on X is Claire Layman. Who hosts Colette or publishes Colette. She doesn't understand why she could be held liable for defamation that she publishes on on her website. But social media companies can't be held liable.

[Mike Masnick]

Yeah, I mean, well, I don't read.

[Nico Perino]

You have to know a little bit about her website, whether it gets 230 protections.

[Mike Masnick]

Yeah, I mean, if, if she has comments or if she's reposting other people's work in any way, she would have 230 protection protections. Just as newspapers, if they have comment sections, they also get 230 protections. But also, you know, it is important to recognize that Section 230 protects users as well. Everybody focuses on the platform side, the ICS interactive Computing service part of it, but it also says users, and that's been useful. There have been cases where people have forwarded an email that the email itself was defamatory, but because they forwarded it, they were protected by 2:30.

[Nico Perino]

They were retweeting.

[Mike Masnick]

Exactly. That was the other one I was about to do. Retweet something which everyone does all the time. Imagine, you know, you're scrolling through your thing and your addictive feed as it might be, and you see things and you're retweeting it. If you retweeted something that was later than held to be defamatory, should you be held liable for just clicking that retweet button? Section230 says no, the person who spoke it can still be held liable and they can be sued and have to go through the process of that. But merely for retweeting, you shouldn't. So section 230, it's not a special carve out. If it's a special carve out, it is a special carve out for users of the Internet and that we now have places where we can speak and places where we can do things like send emails or retweets or do any of this stuff exist? Because we have the protection of section 230 which makes it possible for intermediaries to offer the services to us.

[Nico Perino]

Yeah. If you talk to Chris Cox, and I'm assuming Ron Wyden, who I've not spoken with about section 230, they'll say we were just recognizing the new nature of the Internet and how it's democratized speech in a way that just didn't exist before and it needed some statutory protections in order to become what it became. And I don't know about you, Mike, I'd like to hear your opinion on this. Do you think social media could exist without section 230, I think it's very, very different. Right.

[Mike Masnick]

There will be, you know, people want to communicate, people want to form communities. That's, it's a natural part of human society. But what you end up having without something that is like a section 230 and we can address, like some people will raise the question of like, Section 230 only exists in the US but we have social media in other places. There's, there's a discussion to be had there why that is and how that works. But without Section 230 or something, you know, akin to Section 230, what you will most likely have is something that is much more like a broadcast kind of system where things are heavily locked down, that, you know, the content is very heavily gatekept, that only limited speech is allowed, that it has to be reviewed and approved. It becomes more like television than an Internet where you have this wide open world where people can, can discuss and, and share expertise and argue and debate and all of these things.

[Nico Perino]

Well, which is interesting, right, because you have a lot of conservatives that are coming down on section 230 in Congress right now. And I'm like, the past five years, haven't you guys been criticizing social media censorship? If you get rid of section 230, it's just going to supercharge it.

[Mike Masnick]

Yes, it will. It will almost certainly go in the, the opposite direction. And I, I don't understand why there's so much confusion about Section 230. I know that it is frustrating to both Chris Cox and Ron Wyden, and they've tried to explain it. I mean, Chris has obviously been out of Congress for a long time. Senator Wyden is still a senator, and I know that he talks to his colleagues all the time on both sides of the aisle. And there's some sort of very odd blind spot. And I think it's the same sort of blind spot that caused a lot of people to cheer on these particular cases, which is that they don't like the companies. And again, I don't like the companies

[Nico Perino]

either, but you're more charitable than I am. I actually think a lot of members of Congress actually know what would happen if you got rid of section 230. It's just an easy punching bag to, you know, because as Derek Thompson wrote in his recent article, this, what is it? The smartphone theory of everything that it's like everyone wants to blame all of society's ills on, on the smartphone and social media and all that.

[Mike Masnick]

Yeah. So it also, also within the political context. I think this is a very cynical take, but I've heard it from other people and the longer I've watched these things, the more it feels right, which is that as a politician, especially in Congress, one of the best ways to make sure that your campaign coffers are continually refilled is to pit big industries against big industries and set off big fights. And suddenly lobbyists show up and donations show up and everyone's trying to pick off everybody on either side. It's incredibly cynical and it is kind of depressing if you want, like a good representative democracy working for the people.

[Nico Perino]

But it's kind of funny. I was seeing something on X as I was scrolling in my addicted way today and someone said that Congress has just become a social media operation and not a legislative operation.

[Mike Masnick]

Yeah.

[Nico Perino]

Be interesting to see actually what would happen to members of Congress if these social media companies could be held liable for some of their posts.

[Mike Masnick]

Oh yeah.

[Nico Perino]

I mean, we'll put, we'll put some of that side to side now because we've Talked about Section 230 on a lot of previous episodes. But I do want to ask, and I, I'm derelict in my responsibilities here as a host that it took me 45 minutes to get to this question, but what about the comparison of social media to cigarettes? That's the one I'm hearing all the time as I'm debating this online. What do you make?

[Mike Masnick]

Yeah, yeah, I would say it's ridiculous. Again, it's an emotional comparison. But cigarettes are not speech. That's the simplest version of it. Right. Cigarettes are delivering a chemical into your body that we know is harmful. That there are very clear long term studies showing the direct, clear causal harm of nicotine and smoke into your body. That is not true with speech. We don't have that. And there are many, many uses. I would argue many more cases where speech is helpful and useful and community building and valuable than there are of examples where speech is in some ways harmful or painful or problematic. I think the comparisons are ridiculous. I understand the emotional appeal of them there. There's an emotional appeal because speech can, you know, paint pictures and make things emotional. But you know, the comparisons I always hear are cigarettes and lead paint and both of those are, you know, poisonous material like little literal poisons delivered into your body that you consume physically. Speech is not that. And the comparison to me makes no sense and is extremely frustrating because, well,

[Nico Perino]

people will say, well, people will grant you that, Mike. I've seen that on social media. They'll grant you that. But they'll say, but you can't advertise cigarettes to minors. And to that I'd say it's just kind of a fundamental misunderstanding of the case law. It's not clear from the case law that you can't market cigarettes to minors. In fact, the reason you don't or these companies don't is, is because there have been a lot of settlements that saying where they've committed to not doing that. So.

[Mike Masnick]

Yeah, and honestly, I mean, I think part of it too is just sort of like the public narrative. Right. You know, marketing cigarettes to children looks bad. And you know, one of the things that I always sort of try and

[Nico Perino]

remind it's not good marketing.

[Mike Masnick]

Yeah, yeah. You know, one of the things that I really try and remind people of and I, you know, this is unsatisfactory for some people is that, you know, incentives are not just law. Right. You know, there are all sorts of incentives out there that go beyond the legal mandates. You know, you want the public to like and support you in lots of cases. And you know, depending on different businesses in the social media context, we always think about, you know, advertisers, the business model, they have a lot of influence on how social media works. And you know, advertisers often will push the companies to, to change policies.

[Nico Perino]

You might get sued by Elon Musk.

[Mike Masnick]

But nevertheless, yes, that's, that's a different podcast. But I mean, there are other incentives out there and just, you know, users, you know, this is one of the things that I know, like a lot of people who dislike social media, again for potentially good reasons go on and on about how, oh, all they want to do is create engagement bait and enrage you and, you know, get you all pissed off and all these kinds of things. But there have been studies that have shown that that is not a good long term business strategy for any of these platform because at some point, you know, you will put down your phone and the next day you'll say, gosh, I didn't enjoy that. I don't think I'm going back anymore. And there were studies that were done on Meta and on YouTube and on a few other platforms that found that when they were just promoting the most rage inducing kinds of content, that while it may have kept people on their devices in the short term, there was a period of time that after that they just completely abandoned the platform whatsoever. And so a lot of the platforms have adjusted their algorithms to say, like, don't just show people the most rage inducing content because that's not Good as a long term strategy. And so like the users themselves push back on these kinds of things and when the companies are doing bad things and sometimes it takes a while and sometimes you might disagree with where and how long they do things or what trade offs they decide to make. And yes, obviously these are, you know, big corporate entities in a system of free market capitalism or as free market as we are and want to make money and want to make a lot of money, but there are all sorts of incentives over how these things play out that to think that the only solution is just to pass a law that says ban this or punish these guys. I think is, is a very short sighted take.

[Nico Perino]

You wrote an article in 2023 titled Yet Another massive study says there's no evidence that, that social media is inherently harmful to teens. And you have a bulleted list of all the studies where it says there might be some correlation if that, but there's no direct causal evidence that social media is harmful to kids. Where does the literature stand now? Are you keeping up with it?

[Mike Masnick]

Yeah, yeah. There have been more studies. In fact there were just two different very large scale studies of teenagers in particular. One was done in the UK and one was done in Australia and I'm forgetting the exact numbers. I think the Australia one was 125,000 teenagers and I think the UK one was either 25 or 50,000 and, and came to the same results which was that there is very little evidence of causal harm. What it is, is, and, and I try to be very clear because the different research all takes slightly different, they have slightly different methods of, of teasing this out and they have slightly different results. What, what the evidence really suggests is that there are some people, some percentage of people and, and again from most of the research it seems to be in the sort of maybe 5% range who have real trouble like significant problematic behavior associated with their use of this technology. And that is a real concern and we should be looking at ways to identify and to help those people. And there are a number of different interventions that I think might be useful. For the vast majority of people it is not harmful. And for another percentage, and again this depends on what you're looking at and where and all sorts of things. It is extremely helpful people being able to find, community being able to find useful information. But the evidence of inherent harm is, is completely lack.

[Nico Perino]

Well that's, that's actually interesting. You bring up for the people who. It is helpful. Those people were absent from these two.

[Mike Masnick]

Yes.

[Nico Perino]

Jury verdicts. Right. Like they didn't have a role in this case where they could explain to the court and they could explain to the juries, oh, this is the way social media helped me escape the trauma of my youth, helped me find supportive communities, help me escape the limitations of my school and find a community built around physics or sports or for me it was heavy metal music. I didn't have much of that in my school. I know I, I was on pure volume in MySpace, finding all these local heavy metal bands, you know, and so it is a way to connect. And that's, that's, that's one of the challenges also in this case out of California is that it seemed like this plaintiff had a very traumatic childhood and tough to talk about this, but it seemed like her mother was abusive, potentially physically, also psychologically. Her father had left her, her sister, I heard, had a suicide attempt. And actually, if you look at some of the evidence, it seemed like social media was a way for, for this plaintiff to escape.

[Mike Masnick]

In fact, that there was indications of that. And again, it's like every individual is different and you don't want to generalize from any particular individual individual. And obviously she had a very, very troubling history and, and a lot of real issues that need real help. But it did appear that some of her use of social media was her escape from those real, real world, in person trauma events that were occurring. And, and in fact, you know, she was using it as, as a tool. And this gets to one of the points that there's been studies that this is again, not conclusive, but some of the studies suggest that among the group of people who where there, where there is a correlation of very high social media usage and significant mental health challenges that the causation direction might be in reverse, which is that they're having trauma, mental health issues or other troubling situations and they're unable to get the kind of re to have the kind of resources or mental health help and support that they need. And therefore they turn to social media. So it's not that the social media is causing the problem, but that is where they turn. And we can argue that that's not the best place for them to turn. And I think that's probably true. But in the absence of a system to actually get them the help that they need, it's very possible that for many of them it is more helpful for, for them to be able to go to social media and maybe find someone who can help or a community that can help, rather than just saying cut them off entirely and leave them with no help at all and leave them feeling alone and, you know, unsupported entirely. And so it's very, very tricky to just say, oh, it's, it's harmful. We have to cut it off entirely.

[Nico Perino]

You know, one of the challenges for me in interpreting these jury verdicts is it seems to have implications beyond just minors. Like, if. If the design of social media is addictive and there's this vibe that it's addictive for everyone. We've kind of referenced the ways some of us have a sense that it might be, then it could be regulated for adults as well. And we've already talked about how, even if you put that to the side, these verdicts are going to implicate adults through removing encryption on social media apps. There's also a suggestion from the New Mexico verdict that they need to age gate as well. And if you can't deliver certain content to minors, the only way you know, a minor is a minor is through some sort of age or identity verification. But I mentioned the Derek Thompson. Derek Thompson was a writer for the Atlantic for many years. Now he's on Substack, his article, the Social Media Theory of Everything. He said it's not clear, for example, that social media design is what's creating this addiction. He thinks it's just the IV drip that smartphones and other access to the Internet can create for people, the IV drip of information. Because there are some studies that suggest that the more access to information you have, the more anxiety and stress that you have. And so I think, as you note in your piece, it's hard to isolate various variables here. Is it just the design or is it the fact that the design feeds you additional information? And information, of course, is protected by the First Amendment and its free speech protections. We don't want to regulate that. Nevertheless, it's just not clear to me that it's social media and not something else that you can't disentangle from it.

[Mike Masnick]

But, yeah, yeah, no, I mean, it's very difficult to figure this out. And to me, a lot of it is these are things that this is a new form of information, new information environment that lots of us are dealing with. And humanity wasn't, you know, we're not used to this, and we're all sort of learning our way through it. And we've seen, you know, in the past, the introduction of the printing press, for example, that it took a century or so for people to sort of come to terms with that.

[Nico Perino]

Wars in Europe, millions dead as a result of the sort of ideas that inspired and circulated. So. Yeah, but Mike, what do you make of the role of parents here? We've got just like two or three minutes left here. David French had an op ed in the New York Times where he wrote that one of my great parenting regrets is naively giving my two older kids phones when they were quite young. He said they're doing fine and they're great kids, but it was still a mistake. He said, I did not know what I did not know. My youngest child, however, had a substantially different experience. We learned, we changed and so has virtually every parent I know. She didn't get a phone until she was 16 and she could not take it into a room. Even then we had limited access to social media apps. Every year she took a month long sabbatical. Other parents asked that their kids sign digital contracts regarding phone use. So they block all social media or they regularly review their kids social media accounts. I mean, these are things that David French has done. He's referencing things other parents have done. Jonathan Haidt talks about a collective action problem though is like you get your kids constantly nagging you to give you a phone because all of their friends have phones. I believe that there is some role for parents to play here. You can't get a smartphone that's connected to the, I don't know, the satellites or whatever, the telecommunication devices without getting a data plan which requires a credit check. So there are ways that parents can police this. It's not easy. Then again, putting my three kids to bed at night is not easy. They constantly are nagging me to stay up later than they do. So what do you see the role as parents?

[Mike Masnick]

Yes. No, I think it definitely matters a lot. And I often go back to. There's a researcher named Dana Boyd who's a professor who, who has written about the difference between risks and harms. And you know, you don't send a child who is not prepared to go, you know, run downtown and, and buy stuff for me. You teach them how to walk. You know, with you as a parent, you teach them how to cross the street. But as they get better and, and learn how to do those things, then maybe as they get older you can say, okay, you can go down to the park by yourself or different things like that. You, you teach them the difference between harm and risks and in risky situations you sort of teach them how to deal with it. You don't just assume like, oh, crossing the street is dangerous. My child will never cross the street until they're 18 years old and then suddenly go wild in the world. I think the role of parents is to teach people the differences. Like these are tools and sometimes they're useful and sometimes you can get use them too much. And so we can introduce them in gentle ways and careful ways and say, okay, okay, you can use this, and this is restricted. And as you show, as you grow and as you show that you have responsibility, we can teach you how to use these things responsibly. I think that's a really important role. But part of it is slow and boring and involves education and careful, thoughtful approaches to these things. And nobody likes that. Nobody writes books, bestselling books about that.

[Nico Perino]

I had seen on Fox News that Meta's chief legal officer said that they are going to appeal the verdicts. So that's coming up. And I'm sure that the Section 230 and First Amendment questions will get addressed on appeal. Nevertheless, last question here. 30 seconds remaining. There are thousands of similar lawsuits, as you know, I think you note, maybe 1600, some of which are consolidated. But nevertheless, there are a lot of lawsuits that are seeking the same outcome that we got from these two verdicts. Is this an existential crisis for social media companies?

[Mike Masnick]

Yeah, I think so. I mean, what the eventual version looks like. If these lawsuits are allowed to go on, and I'm sure thousands more are being filed as we speak based on these results, it will change social media in very dramatic ways, in ways that we can't quite predict, but ways I don't think we will be happy with. I think it really is an existential moment for the Internet, for the idea of an open Internet where free speech is enabled and encouraged.

[Nico Perino]

Mike Masnick, thanks for coming back on the show.

[Mike Masnick]

Yeah, thanks for having me. This was fun.

[Nico Perino]

I'm Nico Perino and this podcast is recorded and edited by a rotating roster of my Fire colleagues, including Bruce Jones, Ronald Baez, Jackson Flagel, and Scott Rogers. This podcast is produced by Emily Beaman. To learn more about so to Speak, you can subscribe to our YouTube channel, our substack page, and we also have video versions of this podcast on those two pages as well as X. You can follow us on X by searching for the handle Free Speech Talk. You can email us feedback otospeakire.org Again, that is sotospeakire.org and if you enjoyed this episode, leave us a review. Wherever you get your podcasts, they help us attract new listeners to the show. And until next time, thanks again for listening. The foundation for Individual Rights and Expression Fire and the Flame logo are registered trademarks of the foundation for individual rights and expression.