The trial lawyers come for online free speech
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Whatever the plaintiff’s attorneys contend, the liability imposed upon Meta and YouTube cannot be severed from the content they host and disseminate. Without the latter, the former would never be imagined, much less found by a jury.
The plaintiff in the case, a young woman known as Kaley or “KGM,” was brought up in anguishing conditions, the daughter of a mother who physically and emotionally abused her. She “was self-harming around when she was in the 6th grade,” reads the Associated Press account of the trial.
It is unsurprising that she, as a young girl, withdrew to social media to find something like peace, fulfillment, and satisfaction. It is equally unsurprising that she used social media to excess and leveraged her every chance to obtain engagement.
More generally, it is anything but certain that users’ affinity for social media is rightly termed an “addiction.” Likewise, research purporting to prove that social media has caused an epidemic of psychological disorders among children — the research of Jonathan Haidt, for example — has proven to be faulty, rife with faulty methodology and confirmation bias.
It is obvious that some misuse social media and their lives are, consequently, diminished. But this no more indicates that the platforms are “defective” in some legally cognizable sense than the mere existence of obesity in America indicates that McDonald’s or Taco Bell’s offerings are “defective” — or that fast-food restaurants ought to be held liable for occurrences of diabetes.
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Humans are a diverse bunch. That a minority, suffering from particular difficulties or vulnerabilities, cannot engage with this product or that in a healthy fashion should not, in a courtroom or the public square, constitute the basis of a totalizing rebuke.
Should the Los Angeles verdict stand, social media companies, confronted with the prospect of liability, are bound to remake their products to prevent any allegation — credible or otherwise — that their platforms cause or worsen whatever psychological distress from which users might suffer.
“If media companies must worry about liability whenever their expressive outputs are thought to be ‘harmful,’ the universe of available content would be reduced to the safest, blandest, and least engaging stuff imaginable,” warns Ari Cohn, the lead counsel for tech policy at the Foundation for Individual Rights and Expression.
The operations of Instagram and YouTube broke no law enacted by Congress or a state legislature to regulate the workings of social media. Even so, this litigation, if successful, will be regulatory in its effect, resulting in the contracting of the free and open internet.
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