A few weeks ago, social media skeptics received their best news in years.
In KGM v. Meta, a jury found Meta and Google negligent for their role in fueling a youth mental health crisis. Now, six million dollars in damages is basically meaningless to companies that gross hundreds of billions in revenue annually. But the reason this case has gotten so much media attention is for what it might represent. Some have compared the case to the beginning of litigation against Big Tobacco last century, which culminated in a $206 billion master settlement with more than 40 states.
In this case, however, the jury got it wrong. It concluded three things:
Instagram and YouTube were designed in ways that encouraged uncontrollable use and addictive behaviors.
The companies failed to adequately warn users, especially minors, about the risks.
The design of their platforms was a considerable factor in causing the plaintiff’s mental health problems.
All three of these things could be true, but neither Meta nor Google should be held liable for any of them. Unlike prior cases involving social media, KGM treated YouTube and Instagram as fundamentally defective products. The central question wasn’t whether malicious users could misuse these platforms, but whether the platforms themselves posed inherent risks. In general, online companies aren’t legally accountable for what users post due to Section 230 protections — Meta, for instance, wouldn’t be held liable for someone using its products to incite violence. In this case, though, Judge Carolyn Kuhl ruled that platform design elements — like algorithm-driven feeds, autoplaying videos, and push notifications — could be challenged.
In other words, Instagram and YouTube should be held liable because they’re addictive, and too effective at providing content users want.
In a motion denying summary judgment, Judge Kuhl wrote: “The fact that a design feature like ‘infinite scroll’ impelled a user to continue to consume content that proved harmful does not mean that there can be no liability for harm arising from the design feature itself.” In other words, Meta and Google can be held responsible for designing a product that fulfills a consumer desire. Such an argument is dubious. Product innovation exists precisely to meet the demands of consumers — and that’s a good thing.
If such a conclusion holds, where could it not apply? Oreos are delicious — should Mondelez International be forced to make their product less appealing because a “design feature” of Oreos causes repeated consumption of Oreos, with negative health outcomes? Should TV shows that end on a cliffhanger be banned because such a “design feature” creates an addictive cycle, causing the viewer to continue watching? In excess, many other products besides social media can become addictive, but it’s not the government’s job to single out certain products or consumer desires as addictive.
And then there’s the First Amendment problem. Even assuming that social media is addictive in a way analogous to tobacco, the two differ in a key respect. Social media companies are being held liable for their speech, which is protected by the First Amendment. As Erwin Chemerinsky, Dean of the UC Berkeley School of Law, put it:
The plaintiffs in these lawsuits argued that companies design algorithms that are tailored to individual users to keep them hooked. But algorithms are themselves speech, and there is no reason to treat this speech differently from the code that encourages people to keep playing video games.
Or, as the Supreme Court Justice Elena Kagan wrote in Moody v. NetChoice, “the First Amendment … does not go on leave when social media [is] involved.” And while social media is almost certainly a drain on society — decreasing attention spans, increasing depression, and spreading misinformation — neither restricting First Amendment-protected speech nor regulating the free market is the answer.
Forcing social media companies to restrict access to social media won’t necessarily lead to meaningfully lower social media usage by teenagers. For one, even the most extreme option — simply banning social media usage by teenagers — is easily circumvented by most teenagers. Teenagers have cleared visual age checks. As one Australian teenager put it, “I scrunched my face up to get more wrinkles, so I looked older, and it worked!” Perhaps not a high-tech workaround, but it nevertheless worked, and many other techniques do, too.
And even if the current mainstream social media companies — Meta, Google, TikTok, etc. — were forced to make their products less addictive, that would just open the door for competitors to replace them. And then what? Regulate those products until they’re less addictive, too? At some point, the government will just be playing First Amendment Whac-A-Mole.
Ultimately, this is not a problem for the courts — nor even legislatures — but rather for civil society. Regulating trillion-dollar companies out of existence won’t fix the underlying problem. If social media were intrinsically detrimental, in the way that cigarettes cause a chemical addiction and subsequent health problems, then almost every teenager who uses social media would struggle with addiction and see some demonstrable negative impact on their life. But that’s not the case. About one in five teens say social media has hurt their mental health. Another study found that social media usage beyond three hours a day increased internalizing problems (like anxiety/depression) by about 60 to 80 percent. Neither of these numbers are great. But they also reveal that a significant percentage of teenagers who use social media are perfectly fine.
So what explains how one teen could use social media and neither become addicted nor have their mental health suffer, and another teen could experience the opposite? Very likely having access to a robust civil society — family, activities, community organizations, religious groups, and other social supports. Social media accounts for about one percent of the variation in life satisfaction. By contrast, family situations explain about a third of life satisfaction for young adults. Running to government for legislation to fix our minor woes allows these important community bonds to atrophy. An important aspect of the liberal political order is the recognition that voluntary, robust civil society can play a much more effective role in addressing these societal problems than can even well-intentioned meddling by the government. Social media is no exception.
