Prof. Jane Bambauer (Florida) and I just submitted this amicus brief in Commonwealth v. Meta, which is now pending before the Massachusetts high court (and which is reviewing this trial court order that had let the claim go forward); thanks to Jay M. Wolman (Randazza Legal Group, PLLC) for his invaluable pro bono help as local counsel, and to law students John Joonhee Cho and Jonathan Tao, who worked on the brief. Here's the Summary of Argument:
[1.] Social media platforms create expressive products. Their choices about how to craft and format those products are presumptively protected by the First Amendment.
That protection extends to the very features the Commonwealth demands Meta remove. Push notifications, for instance, allow social media platforms to speak to users about new content. Endless scrolling, autoplay, and ephemeral features let social media platforms decide how users see speech on the platforms, just as a newspaper chooses how to format the front page or a film director chooses whether to break up a movie into multiple episodes. Whether these features constitute Meta's own direct speech, or are structural decisions about how Meta presents third-party speech, Moody v. NetChoice, LLC, 603 U.S. 707, 716-17 (2024), they stem from constitutionally protected decisions about where, when, and how speech is communicated (and, as to the "like" button, what speech is communicated).
[2.] A social media platform's design features shape how users speak through the platform. Push notifications amplify user speech by informing other users about the posts. "Likes" give users the ability to express their views about a post and see what others think about the post. "Likes" also communicate to social media platforms about what content the user enjoys, and thus help platforms determine what further content to show the user. And users may benefit from features like endless scrolling or autoplay because those features make information easier to access.
The same is true of users who are minors. Like adults, "minors are entitled to a significant measure of First Amendment protection, and only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to them." Erznoznik v. Jacksonville, 422 U.S. 205, 212-13 (1975) (citation omitted). [P]rotected speech "cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them." Brown v. Ent. Merchs. Ass'n, 564 U.S. 786, 794 (2011) (citation omitted). The same principle governing the violent images in Brown—Brown struck down a restriction on violent video games, regardless of the "ideas" the games conveyed—applies to other display and content features such as autoplay, "likes," and endless scrolling.
[3.] The Commonwealth's lawsuit improperly asks judges and juries to second-guess Meta's choices about how it and its users will communicate. By concluding that it was legally sufficient for the Commonwealth to allege that "the harm alleged could be reasonably avoided and that such harm was not outweighed by Instagram's countervailing benefits," Mem. & Order 23, Meta Br. 84, the Superior Court essentially concluded that Meta's speech can be restricted if it is seen as negligent. But this Court and other courts have recognized that the First Amendment bars such negligence claims based on speech—for instance, claims that a late-night show featuring a dangerous stunt was negligently aired, a magazine describing autoerotic asphyxiation was negligently published, or a movie depicting violent youth gangs was negligently distributed. This Court should likewise recognize that judges and juries ought not be able to impose liability on Meta based on a theory that its speech was "unfair," Mem. & Order 21, Meta Br. 82, or failed a harm-benefit negligence-style balancing analysis.
