Hello and welcome to Decoder. I'm Nilay Patel, editor-in-chief of The Verge, and Decoder is my show about big ideas and other problems. Today, we're talking about the landmark social media addiction trials that just resulted in two major verdicts against Meta and Google. There's one case in New Mexico against Meta, and another in California against both companies, who both have said they plan to appeal.
These are complicated cases with some huge repercussions for how these platforms work and the very nature of speech in America. So, to help us work through it all, I've brought on two heavy hitters. My friend Casey Newton, the founder and editor of the excellent newsletter Platformer and co-host of the Hard Fork podcast, as well as The Verge senior policy reporter Lauren Feiner, who's actually in that Los Angeles courtroom where executives like Mark Zuckerberg took the stand in the case of a 20-year-old woman named Kaylee, who successfully argued that Meta and Google negligently designed their platforms in ways that contributed to her mental health issues.
These cases, the first in a wave of injury lawsuits targeting tech companies, are about the design decisions of platforms like Instagram and YouTube. They argue that the platforms have fundamental design flaws that harm users, especially teenagers, and that these companies knew about these problems and were negligent in shipping these features anyway.
These cases are part of a much larger set of moves that aim to fundamentally change the legal mechanisms that exist that might regulate social media. Now, harm in the context of these cases isn't just addictive design that brings users back compulsively. It's also features like algorithmic recommendations and camera filters that make issues like anxiety, depression, and body dysmorphia worse.
This emphasis on how the platforms work, as opposed to the content, is part of a movement that has been building for years, focused on the argument that social media is not and cannot be healthy. That, in fact, these products might be defective the same way that cigarettes, when used as designed, cause cancer. That's a lot of complicated ideas, and Casey and Lauren and I really spent some time working through them.
The first complicated idea is whether or not there is a distinction between product features, recommendation, autoplay video, and infinite scroll, and the types of harmful, yet legal, speech served people on these platforms using those tools, like eating disorder videos or posts designed to convince young men to hate women. But, it's very difficult, if not unconstitutional, to force the companies to moderate this kind of content in specific ways. The First Amendment obviously prohibits the government from regulating what speech these companies promote or moderate, and private action is usually blocked by Section 230 of the Communications Decency Act, which protects tech platforms from being held responsible for the content their users post. So, it's really hard to pull all these ideas apart. An algorithmic feed with no content in it simply isn't a compelling product, let alone a negligently defective one that causes harm.
A lot of smart people who have been on this show and all over The Verge over the past few years have said that these rulings are just an end run around 230 and the First Amendment, a way to make platforms liable for what ultimately is just speech, and in a way that will cause more speech to be restricted.
You'll hear the three of us talk a lot about that idea, and whether the growing calls to repeal 230 entirely have any logical connection to these cases, or whether they're just politically opportunistic. But, there are many more ideas at play here, and even more layers of complication.
You're going to hear Casey and I crash out a few times in this episode because we've been covering tech regulation for so long, it feels silly to act like everything is working well for regular people who have negative experiences with social media all the time. Section 230 is 30 years old now, and it's unclear whether the world it was designed to help create ever came into existence. You'll hear Lauren talk about how some of the authors of Section 230 are open to changes, particularly around AI and speech online. At the same time, any changes to 230 run headlong into the First Amendment and potentially into opening the door to government speech regulations at scale. Like I said, it's complicated, and I'm very curious to hear what you all think about this because it's clear that a lot of things are about to be up for grabs.
Before we start, a quick reminder that you can listen to this episode, or any episode of Decoder, completely ad-free by subscribing to The Verge. Just go to theverge.com/subscribe.
Okay, Platformer's Casey Newton and The Verge senior policy reporter Lauren Feiner on the major social media lawsuits. Here we go.
Lauren Feiner, you're senior policy reporter here at The Verge. Casey Newton, you're founder and editor of Platformer, and I would say forever Silicon Valley editor here at theverge.com.
I do continue to identify as a Silicon Valley editor of The Verge, so I'm glad you feel the same way.
You can check out, but you can never leave, buddy. Welcome both of you to Decoder. I want to talk about these trials that a bunch of social media companies faced in California and New Mexico. Lauren, at a high level, you were in the room for at least the trial in California. I think Snap and TikTok settled that one, they were out. YouTube and Meta just lost a jury verdict. Describe what happened in those trials and what you saw in the courtroom while you were there.
At their core, these trials were about the design decisions that social media companies make, how users are going to interact with what comes across their feeds. It was really trying to get around a problem that has been going on with tech for a long time around, can you separate design from content on these platforms? That's what these trials were trying to get at, and what came out at trial in the courtrooms were a lot of internal documents from these companies. In the LA case, it was Meta and YouTube, and in New Mexico, it was just Meta. And we saw lots of internal documents, lots of former Meta employees turned whistleblowers take the stand to discuss the decisions they made and the things they saw. So, that was a lot of what we saw in the courtroom, and in LA, we even saw the head of Instagram, Adam Mosseri, and the CEO of Meta, Mark Zuckerberg, take the stand.
Casey, everyone's calling these bellwether trials. We call them bellwether trials at The Verge. The whole industry has decided this is a word we're going to use. Can you just quickly explain what that means? You've been covering attempts to regulate these companies forever, and the idea that these trials are a bellwether seems particularly meaningful here.
As you know, Nilay, for basically the past 20 years, companies have been able to use Section 230 as a shield, and whenever there is any remotely content-related challenge to any of these platforms in court, they just get dismissed out of hand. The reason that these cases are bellwethers is that if they were successful, it would open up this new front for litigation, and these companies could no longer just automatically use Section 230 as a shield. And that now, indeed, has happened, and we're expecting there will now be dozens more lawsuits proceeding along exactly these same lines.
Section 230, as I'm hoping by this point Decoder listeners know, is the law that says the platforms are not liable for what their users post. So, if I put up a post on Instagram or TikTok that says Casey Newton is horrible, Hard Fork is my sworn enemy, it should be made illegal, Casey can sue me, but you can't sue Instagram. And that has always been really important because it means that whenever anyone says they're harmed by the platforms, the platforms can say, 'It wasn't us. It was actually the speech that you're mad about, and our role in distributing or promoting that speech is actually the same as the speech itself.' It seems like this trial did a better job of making that argument than attempts in the past. I'm thinking of cases like Herrick versus Grindr. There was the famous case against Snapchat with the speedometer filter, where a teenager drove too fast trying to get a screenshot or photo of himself running his car as fast as he could in Snapchat. Those cases were not bellwethers in the same way. What set these apart, and why was that argument more successful this time?
So, I think the Snapchat case was a really important precedent. It's this case Lemon versus Snap. Snapchat used to offer this filter where you could turn it on and take a video of yourself in your car, and it would show how fast you were going. And plaintiffs successfully argued that this had created an incentive within the app for people to go really, really fast and do dangerous things, and indeed, in this particular case, there was a dangerous crash. So, the reason that that was important was all of a sudden, the 230 shield isn't absolute, right? There had already been a couple minor exceptions, like you can't post about terrorism and platforms have to remove CSAM. But now we're saying, 'Okay, you can't actually offer a filter like this because it might incentivize terrible behavior.' This is what sort of opens up the rest of the landscape for the plaintiffs' attorneys. They're able to say like, 'Well, what other design features are there of these platforms, and what incentives are they creating? We're not going to talk about the actual messages that are being traded back and forth on Snapchat, or the actual content of the post in the Instagram feed. But we are going to ask you about things like infinite scroll and autoplay video and push notifications that arrive continuously throughout the night and might disrupt your sleep.' And all of a sudden, they were able to find purchase because they had that initial precedent.
The thing that really gets me about it is Snapchat had made that filter. That was Snapchat speech. They were the ones saying, 'Well, if you drive fast, we'll generate a speedometer reading for you.' And in this case, it's still not the platform's speech. You can make an infinite scroll, you can make autoplay videos, and that is just ways that they are managing the speech of others. Did they have to overcome that? Because that seems like where you would hit the 230 rocks over and over again and say, 'We're just managing the speech of others. It's still the First Amendment.'
I think the plaintiffs were able to successfully argue infinite scroll is not the speech of others, right? Like, there's no sort of liability of another person that gets involved here. It's you built a product and the product is defective, right? Like they were able to successfully liken these things to cars without seat belts and it just really resonated with jurors. And I think it's worth taking a minute to talk about why that might be because I think this is something that the people that I talked to at the social media companies never seem to understand.
Everybody knows someone who has a huge problem with Instagram. This person is probably in your immediate family. They have deleted it a hundred times off their phone and they always reinstall it. They've set the screen time limits but they keep coming back over and over again and they hate themselves for it, right? This is a near universal experience in America now and so when you sit a jury down and you say there's something wrong with Instagram, it's pretty easy to find a lot of people who say that sounds right to me.
One of my feelings was that if any of these cases ever got to a jury that the thing Casey is describing would kick in. Like everybody has these negative experiences with these social media platforms and the companies themselves always tell us that statistically these problems are small but their user numbers are so vast that even a small percentage is many, many millions of people. I think the platforms never got their heads around that either. Did you feel the same way there that once you put Mark Zuckerberg in front of a jury that there was just no way that the social media platforms would win a case?
It was really hard to know like why were these jurors selected? Were they selected because they're the sort of people who don't use social media a lot or know about a lot of good experiences with social media. So I think that was the wild card in watching them was how are they really taking in this evidence? At the same time it can be hard to hear some of this evidence and anyone who knows someone who's been through a mental health issue or has struggled with just using their phone too much or being on social media too much. I think a lot of us know people like that if we're not those people ourselves. That's definitely going to affect them in some way on a human level. I mean when I was watching Mark Zuckerberg on the stand, he was talking about a certain beauty filter that they had and one of his own employees pushed back on including it and you know, talked about I believe having daughters and you know, thinking about how something like this would affect them. Maybe these people don't have as much experience with social media or don't have the exact same experiences that this plaintiff had but they certainly know other people in their lives who've probably experienced something similar.
Also seems really relevant to say that TikTok and Snap settled before the trial. Like that was the moment when I said, okay, like they must be really, really scared and I was actually waiting for Meta and YouTube to settle as well. Once that happened, I think it was clear they were in a lot of trouble.
The comparison here that everyone has been making is to big tobacco, to junk food, to sugar, right? We all know these things are bad for us. Nicotine is awesome so we can't stop ourselves. There should be some regulatory framework or we should make these companies at least communicate the risks. Does that framework hold for you?
One thing I think about that's kind of a big difference between this moment and that for big tobacco is that there's that saying that there's no safe cigarette and there's a lot of studies that show that's not really the same case for social media that some level of social media use has a positive or at least neutral effect on people. It's really that overuse, that compulsive use that is the main problem here and really the problem that people talk about. Social media does connect people with their friends, lets you stay in touch with people, lets you have social connection or connection outside of your immediate community but obviously it also has really harmful sides to it and using it too much can cut you off from real social connection. So I think that's a big difference here and so when people compare this to that moment, I do think that's really something we need to think about that these aren't really one-to-one scenarios. That said, I think, you know, the comparison is made to pull out how these companies are finally having a lot of their documents come to light in front of juries just like happened in the big tobacco trial. So I think that is really the point to take away from that comparison.
Casey, you and I have talked about this a lot. We owe our careers to social media in very real ways. The idea that the internet let us bypass the gatekeepers and go reach our audiences is very important to us. The flip side of that is boy, a lot of bad people got to do a lot of bad things. How would you draw these lines?
It is very tricky and you have to articulate it with some degree of nuance. To me, I separate the internet problems from the platform problems, right? Like really Nilay, like the internet is what gave us our careers. The internet is what knocked down the gatekeepers, let us sort of, you know, in my case like hang out a shingle on the internet and say, 'Hey, like I'll email you for money,' right? Like that is something that did not really exist in the pre-internet times. The platform problems are different, right? And they have a lot to do with algorithmic amplification, yes, but also these design features, right? This feeling we've been talking about like I don't want to look at TikTok as much as I'm looking at it, I don't know how to stop. I have tried to stop or I bought some device that bricked my phone when I walk in the door, right? These are the problems of creating a platform whose only incentives will ever be to get you to look at it as much as humanly possible. And so that's why I think the scrutiny is finally drifting over to those things, right? We don't want to get rid of an internet. We don't want to get rid of your right to be able to post your opinion online. We want to get rid of this kind of machine that just increasingly seems like it's taking more and more of your time and attention in ways that make you feel bad.
We need to take a quick break. We'll be right back.
We're back with Platformer's Casey Newton and Verge senior policy reporter Lauren Feiner. Before the break, we were discussing the facts of these bellwether cases and how social media platforms in the absence of any meaningful government regulation now find themselves unsympathetic defendants in jury trials much the same way that big tobacco was once dragged into court decades ago. Now I want to talk through the big implications of what happens next and how we square the circle of social media regulation in a policy landscape that remains defined by Section 230.
So that is the sort of story of the case. They went up, they lost. We'll see what happens next. The real turn here is what do they all do now, right? They've been held liable for these product features. There's some conversation that we should have with the industry that, you know, the United States of America is going to have about the difference between free speech and product features. We'll come back to that. But in the meantime, they've got to do something, right? They've got to change something about how their products work to avoid ongoing liability from anyone else who might look at these cases and say we're going to sue you, too. Casey, this feels like a trust and safety problem, right? This is your audience, this is the people you talk to the most. What is their reaction to this?
Their reaction is really negative. I mean like in particular talking to people who still work there and what they'll say is like even if you buy the plaintiffs' arguments here, fixing this is really tricky, right? Because again, even if you believe that this individual teenager had like a horrible time looking at these platforms for too long and it made all of her problems worse. Okay, which design feature of this platform are you going to remove and how is that going to fix her problem, right? Like if Instagram and YouTube did not have autoplay video, if it didn't have infinite scroll, if it didn't have push notifications, would that have improved her mental health to a point where she no longer would have sued the company saying this is a defective product? I don't know, right? I think the problem that we just have as like a society right now is we don't know what safe social media is. We don't know what features are really the most dangerous. I think we have instincts. I think there are experiments that we should run but it's not as simple as well, just turn off the autoplay video and all the teenagers will go play outside again. Is it as simple as none of the teenagers in Australia should use social media? Here's the thing. As like somebody who writes more about social media than anything else, I have been shocked at the degree to which I am just throwing in my lot with Jonathan Haidt. Like I'm like because I also don't know. I do not know which are the features that we should get rid of that are going to make all the teenagers safe. What I can tell you is nobody who works at the platforms cares enough about any of your teenagers for me to trust your teenagers with them. So I would rather say don't look at it until you turn 16 because I know that's going to be better for you than them looking at it.
So I think we can hear Casey who talks to the people who work for the platform companies fully crashing out about that experience. Lauren, you talk to policy makers all day long. Nominally, you are our policy reporter in DC. You cover Capitol Hill. We don't send you to courtrooms all day and all night although that's what you've been doing. On that side of the house, what are the policy makers doing in reaction to these verdicts?
So far we've seen a big push from the lawmakers who are behind some of the biggest social media reform laws like Kids Online Safety Act saying, 'Well, this just shows that we need these new laws or we need to repeal old laws like Section 230 in order to make kids safe.' So I think that is the big push right now. I think, you know, it's still really early days though and I am going to be really interested to see is that kind of where the momentum moves or is there maybe even a kind of a counterbalance to that that says maybe let's slow down because actually the sort of cases we thought wouldn't be able to go through the courthouse are actually moving forward and they're doing so even with Section 230 in place even without KOSA. I'm going to be really interested to see which way that argument goes and if that kind of speeds up or slows momentum in either direction.
All right, I warned you both that I was also having a crash out about all of this and Lauren you've just arrived at it. The notion that those laws have anything to do with these trials and that these trials should let the government pass what amount to very strict speech regulations is just making me feel personally crazy. Right? That okay, the platforms had some design features that made them addictive so we should pass KOSA which will restrict the speech of marginalized groups does not have any through line to me. Josh Hawley is saying we should get rid of Section 230 and these trials prove it and I can't tell you why that is. I cannot make the link in my brain between okay, the platforms were optimized for virality and engagement and negative sentiment so making them responsible for the speech in a way that will force them to take down more speech is the way to solve that problem. I cannot link those ideas together. Can either of you?
No. Truly, I have read so many of the interviews with the Republican policy makers when they get asked about this stuff and none of them seem to understand that if they do in fact get rid of 230, platforms will over moderate content because they will be in terror that a wide variety of things that can now be linked back to them could potentially result in legal liability and they're going to hate it, right? Like these are the guys that hate all content moderation and if you delete Section 230, you're going to get more of it. So no, it doesn't make any sense.
Lauren, you've covered bipartisan attempts to reform 230, bipartisan attempts to do age verification and laws like KOSA. What's the view on the Democrat side?
I think there are really a lot of Democrats who support KOSA and really are fully on board with those kinds of changes to the law and definitely have acknowledged some of the critiques around that you know, this might harm marginalized communities or make it harder to access certain kinds of content that might get politicized on the internet but generally just think that those have been pretty much dealt with in the language of the statute. It's not really going to come to pass and they've just accepted that they feel like this is the best way forward. I mean certainly not all Democrats, you know, obviously Ron Wyden who co-authored Section 230 has not supported KOSA. There really is broad bipartisan support for these kinds of issues. So I think that's going to be the challenge for some of the hardliners on Section 230 and against KOSA right now to think like is it that there's never going to be anything that changes on these issues or is there going to be some kind of change and we have to figure out what we can live with.
