MDM Podcast, Season 7, Episode 12: The future of Section 230 (with Ben Sperry)

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Hello and welcome to the mobile dev memo podcast. I'm your host Eric Seufort and I'm joined today by Ben Sperry. Ben, welcome to the podcast.
Yeah, thanks for having me. I really appreciate this opportunity. So you you are involved with the ICLE, but you were not in Rome last month if I remember. I

don't remember seeing you there anyway.
No, no, not all of us had the privilege of being invited out there. We are separated into two silos. The competition silo made its way to Rome. The innovation silo for the most part. There was a few people that are based in Europe that might have been there, but for the most part, we stayed stateside.
I see. Okay. Well, you missed a nice event. It was very well organized, beautiful venue, really interesting panels. I really had a I had a good time. I I don't mean to rub it in, by the way, either.
Yeah. Yeah. Right. Right.
All right. So, we're going to talk all about these recent social media court cases, the New Mexico case, the California case. Before we dive into that, please introduce yourself to the audience.
Yeah, as you mentioned, my name is Ben Sperry. I'm a senior scholar of innovation policy at the International Center for Law and Economics. My research focuses on the intersection of civil liberties and government regulation, including online speech and platform regulation. Importantly here, I was actually the principal author on an amicus brief in Massachusetts versus

Meta, a case that's very similar and it's underlying arguments to the two jury trials we'll be talking about. I've also written pretty extensively on the questions of the First Amendment, section 230, and the law and economics of products liabilities applied to online speech platforms. The core point of my writing on these issues is that applying products liability to online speech platforms is a, you know, a difficult fit. It could likely result in a lot of collateral censorship. First, when those platforms seek to avoid liability for user generated speech by restricting the speech itself. Second, when platforms place restrictions on minors accessing what is protected first amendment speech. And then third, when speech platforms become less and less engaging and interesting if they're potentially li liable for how speech is presented. So I guess that's background on me and my writing on this issue.
Well, and certainly, you know, it's all very sort of relevant to to these cases in particular. I think maybe the right place to start. I imagine most people

listening to this are familiar at least superficially with the cases, but I think like the best place to start this conversation would just be to do a deep dive uh on those two cases. Right? So, we're recording this on Friday. The cases were decided last week. This will be released next week. So, it'll be have been two weeks, but I think you know these are still pretty big topics in the news. But, but maybe just just kind of give us an overview of the cases in California, New Mexico that were decided last week as we record this. The California case, which is KGM versus Meta, is actually a private products liability case bought brought in behalf of a young lady for injuries that she suffered as a minor. It's been described as a bellweather case because there's like 1,600 plaintiffs suing in California alone who have been consolidated in another case moving through the pipeline at present. And then across the United States as a whole, there are thousands of similar lawsuits pending. I've seen one estimate of over 10,000 [clears throat] for individuals and almost 800 for school

districts. New Mexico versus Meta is a consumer protection case brought by the state itself. 40 other states attorneys generals have filed similar claims against Meta, but this is the first to get all the way to a jury trial. New Mexico, the jury found in favor of the state, finding Meta should pay $375 million in damages for failing to protect users, young users, from child predators on Instagram and Facebook. The New Mexico jury also found Meta was responsible for misleading consumers about the safety of its platforms. Both these claims were under state consumer protection law. In California, the jurors concluded that Meta and Google should pay the woman $3 million in compensatory damages and an additional three million in punitive damages for its product design features with Meta being on the hook for 3 million of that or excuse me for 70% of that amount. While these are actually not that big of amounts for Meta or Google in this individual case, as I mentioned, tens of thousands of similar cases, as well as

potential class actions representing even more users could result in substantially higher damage amounts if the same outcome results. So those are the two main cases we're talking about.
What were the core legal theories used by the plaintiffs in each of these cases and how do they fundamentally differ? Right. So, so we had, you know, just to so, so I think one distinction here that's important is the compensation awarded in the California case was much much less than in the New Mexico case. So, so these were like kind of different just even on that basis. But talk to me about the different legal theories that were used in each of the cases.
Yeah, the legal theories shared a lot of similarities because they're both basically product design cases that attempted to focus on how the speech platforms were designed rather than the underlying userenerated speech. The California case makes this explicit with the plaintiff alleging products liability claims that the social media companies caused her mental health harms related to usage with those platforms by addictive design features like autoplay, infinite scroll, ephemeral content

notifications, algorithmic recommendations, and the like. There was also allegations that the platforms didn't do enough to verify the ages of its users before allowing them to create profiles. The New Mexico case proceeds under consumer protection law, specifically the unfair practices act, using its authority over unfair and deceptive trade practices and unconscionable trading practices and the conduct of any trade or commerce. The state similarly argues that Meta's design features addict young people and expose them to dangerous content related to things like eating disorders and self harm. But the bigger focus in New Mexico was actually the meta's design features also enabled predators and and and pedophiles to engage in child sex exploitation as well as like share child sexual abuse material or CSAM. The unfairness claims were saying that these design features were harmful to consumers. And then the deception claims were saying or focusing on how the features were contrary to Meta's public commitments to providing safety to users. So the reward was also bigger as

you mentioned in New Mexico in part because it was brought upon on behalf of like all the users in parents in in New Mexico and not just one individual plaintiff. But it was also a focus for the jury not just though it was there on the addictive design features but on this child predator seam aspect of what they thought Meta didn't do enough to do protect against.
I see. So it's just kind of like a much darker basis for the lawsuit in New Mexico.
Yeah.
Okay. So you talked about how your research pertains to section 230. How did both of these states successfully bypass section 230 immunity to bring the cases before the jury? Because I mean you'd imagine that I mean that's that's kind of the the fundamental basis for section 230 is to is it I guess the the mechanics design. I mean it it was that it was that sort of like imputed intent, right? Is that the way they were able to get around section 230?
So both cases, the courts considered

section 230 and actually the first amendment and challenges before the jury trials took place. Both courts accepted the framing that these cases were not about the underlying content but about the conduct of the social media companies and how they designed their platforms. So, for instance, on section 230, the California judge rejected the use of a but for test um that would provide section 230 immunity solely because the cause of action wouldn't otherwise exist but for third party content. They concluded that quote the fact that design feature like infinity scroll impelled a user to continue to consume content that proved harmful does not mean that there can be no liability for harm arising for the design feature itself. And then on the first amendment question, the court said allegedly addictive features of the defendant's platform such as like endless scroll cannot be analogized to how a publisher chooses to make a compilation of information, but rather are based on harm allegedly caused by those design features regardless of the third party

content viewed. Now, this is despite the fact that both cases were ultimately about the types of content that was harmful to users. Whether we're talking about content glorifying self harm, trigger triggering body image problems or other mental issues associated with social media companies. To the contrary of what the courts said before these jury trials started, many federal courts have found that section 230 applies to claims ultimately about 30 third party content and that the first amendment protects the publication of speech from products liability claims that would interfere with the underlying speech expression. For instance, a court dismissed a product's liability claim against Netflix some years ago over its series 13 Reasons Why, stating that the plaintiff's efforts to distance the claims from the content of the show itself do not persuade. Without the content, there would be no claim. The the claim there was that Netflix and its algorithmic recommendations for that specific show, not putting some kind of warning that kids shouldn't watch this, it glorifies, you know, suicide should

have gave rise to Netflix being liable for it. Well, the court rejected that. like is being just basically inconsistent with how we think about the First Amendment. To see how this is obvious here, consider a hypothetical world where the social media companies use the same addictive design features, but only host like variations of like those fireplace videos you can find, right? Well, we believe that these features are causing harms to miners or anyone else in that case. Well, maybe in the sense of that they're extremely boring and therefore depressing, right? But not in any sense that they're actually actionable.
Got it. I think that it kind of raises a I mean again not a lawyer this is my you know layman perspective here but I mean that's so we think about like this kind of these decisions would probably motivate a lot more lawsuits for these companies but in in particular right because we in the California case it was Meta and Google
New Mexico was just meta but is this going to motivate more lawsuits for kind of any company that employs these

tactics because the like is not unique to Facebook or Instagram Infinite scroll is not I mean certainly even just more social media companies I mean infinite scroll is fairly a common tactic but I mean like Netflix you mentioned I mean they do algorithmic curation I mean Spotify does algorithmic cur I mean like these are common place right across like the consumer tech landscapes. So do do you foresee that happening is or is this is there is there an element of this that's that is exclusive or specific to social media? No, you're you're right to mention that these are sometimes common things. Algorithmic recommendations are come across the entire internet ecosphere. Almost everything uses them, right? From search engines to, you know, the Netflix and and the streaming services, Spotify, right? Wherever your podcasts are found. And what I will say is two things, right? One is Meta and Google may be well positioned in some ways as established players with a lot of revenue to figure out compliance. They might be able to redesign their platforms. They might be able to figure

out a way to age gate and restrict younger users from using the bad version or the hard the adult version. It would be costly, but they might be able to do it. They might even be able to afford these damages from juries and maybe settlements in the future. The problem is for smaller players or other entrance into these spaces, they might not be able to afford compliance or the threat of litigation. And that's what section 230 is supposed to be about. To protect against ruinous litigation, to protect against regulation that actually stifles competition and innovation online. And yes, it could open the floodgates to some degree. I mean, we talked about there's all these pending lawsuits by by school districts and states and and other possible class actions. If if the courts continue to follow this line of reasoning that's been accepted by these two courts on section 230, they're going to be a lot of litigation. And the question will then be how do products liability type suits interact with the First Amendment? As I kind of mentioned

with the Netflix example, courts have been uncomfortable in the past with applying products liability to protected First Amendment speech, even when it leads to harm. It's only when the speaker makes some kind of like explicit promise to its hearers or readers of safety that these things are usually be found actionable at all. Even how speech is presented, the Supreme Court has said that's protected. Like if a newspaper and its editorial judgment can decide to use, you know, some big font for a headline and then tease a story and then put it on another page a couple pages later and then put an ad beside it. Is that an addictive design feature that made you want to keep reading, right? Or or if Netflix, like we said, or streaming video service ends on a cliffhanger, like it show ends on cliffhanger and it has autoplay for the next episode, the next season. Is that addictive design? courts will likely be reticizent to say so, I think. So, yeah, the floodgates might be open in a new way, but it'll be an interesting time to

figure out the exact contours of these claims in light of the First Amendment. Even in these social media cases, I don't think this is the last word. Not even in these cases. I think there's going to be appeals almost certainly and appellet courts are going to have to figure it out.
So, kind of on that note, what what are the immediate compliance or operational hurdles that Meta and Google now face? I mean, do do they I mean, do they have to do anything before the appeals are decided or or I mean, what what kind of like changes do they could they need to make to their products as a result of these these results?
I believe it's been out in the media already that they are planning to appeal. Most likely they're going to ask for some kind of of stay in the meantime so that they don't immediately have to change their systems. But you know with not only these cases the because they're based in the United States and and a lot of bit business is here but with stuff around the world they're already having to think about how are they going to either create a separate product for younger users or start agegating or age

assurance or something like that. These things are already in largely in the work and like I said like they might be able to afford to figure these things out in a way that smaller or newer competitors may not. and and and like we said like it's going to have effects farreaching and far beyond the social media context. Anybody that uses similar features may need to be very aware of how that could be a problem going forward if this is the way courts are looking at this now. Is there any sense now of of like what changes they you know I mean like you know very practical observable product changes that they would need to make. I mean is is one of those just age gating? I mean that that you know applying only to to children is that or or is it is it deeper than that? I mean because you know if you say that you know infinite scroll is is abusive or whatever predatory that's you know

that's going to change the entire construction of the consumer internet like do we have a sense now of like what changes they might be mandated to make. Yeah, I mean it it'll be interesting, right? Because like when we're talking about damages, if the dam the damages rewards almost have to be enough for the company to care and and what I mean by that is and it can happen. Everybody remembers this case from years ago where a lady poured hot coffee on herself in the drive-thru for McDonald's, right?
Well, it did have a real world effect. McDonald's lowered the temperature of its coffee, which arguably probably was way too hot if it could lead to the degree of burns that lady had. It wasn't even the compensatory damages in the case. It was the punitive damages in that case and then the threat thereof if other people had the same thing happen to them that made McDonald's have to be like, you know what, we better change this here. It's probably the threat that if other cases go the same way and you start to multiply the the plaintiffs many many

times over that might actually make them change what they do. And to your point, practically it might not be an injunction against certain practices, but they might end up having to say, "Well, I guess juries have decided that we either need to agegate, which comes with its own first amendment questions, or we need to get rid of for everybody, at least to some degree, algorithmic recommendations, infinity scroll, ephemeral content, and so forth. which one they decide to do maybe depending on how they decide
if this is just an issue with minors or if this potentially opens them up to liability for everybody else too if they use these things and and that's another interesting question.
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start knowing, go to Incremental. Because good [music] marketing isn't about getting clicks, it's about getting results. Check them out at incremental.com. That's n cm [music] mn.com or click the link in the show description. You wrote a great piece about the treatment of free speech in these cases. I'll quote from it. You said that these cases quote treated metas and Google's platforms not as forms for speech but as engineered products capable of causing harm end quote. What are the implications here for free speech? Talk to me about the free speech angle as a result of these cases.
Yeah, the potential implications for free speech are serious. To avoid liability, both the curation and the presentation of speech would likely be affected. Contrary to the claims of the plaintiffs and accepted by these courts here, clearly it's the underlying speech that is hosted that will have to be considered if these jury verdicts stand. Speech platforms will probably remove a lot of speech that is protected by the First Amendment law if it could be seen

as potentially harmful to minors. And then obviously how speech is presented is the target of these lawsuits. But so, you know, that could lead to the removing of a lot of these features that are allegedly addictive, but that could also make these platforms pretty dull to use and that could be to the detriment of both users and content creators alike. I mean, imagine if this podcast is no longer recommended to those who view similar content or if its fans no longer receive notifications for a new episode. That would be a harm to them, but it would also be a harm obviously to the content creators. Even who is allowed to access speech platforms themselves could be affected if these cases stand. I mean, if miners, who aren't really a great source of revenue anyway, they don't have a lot of money or payment cards to buy products online. If they become too costly to serve because of the threat of liability, the answer will probably be to age gate them through strong age verification and banning them. Um, at some point that could be the next step.

This would itself probably run into first amendment issues. I mean, we have precedents that say you can't basically agegate for protected speech. That's unconstitutional if done by statute. So, it seems odd that you could get the same effect by alleging that it's negligent or somehow a product's liability or consumer protection problem because they didn't do enough to age verify before they created an Instagram account. Seems a little inongruous, but that's the result that end could end up happening is basically restricting minors from using speech platforms that are largely just hosting speech that's lawful to them. We're not talking about pornography here. We're talking about, you know, for the most part videos of other kids dancing and stuff like that, right? [laughter] I know there's a lot more to it, but like there's a lot of protected speech and the vast majority of it is protected speech, even as to children on these platforms.
Yeah. Right. And I think, you know, it's also like a it's not just a a tool for consuming content, it's a tool for

broadcasting content. So, I mean, you'd be cutting people off from a mechanism for communication, right? And
Yeah. for self- expression. Yeah, kids themselves in some cases, minors themselves are able to create a lot of content whether that's just for their own friends and family or and you know you do have examples of content creators of even even very young ones having substantial revenue as a result but regardless it's speech right and they are cut off from not only participating by receiving speech but as you mentioned being speakers themselves
one thing that kind of came to mind and I mean maybe there's just these are totally distinct product categories ories and there's not there's nothing to be learned from these cases, you know, to to apply to other categories. But but is is Roblox, right? So, I mean, I think, you know, you think about Roblox that you if you're familiar with the game publishing platform, it's really popular with kids. They build their own games and distribute them on the platform.
Yeah.
I mean, I I feel like you've got this

you could make or just I mean, I'm saying, you know, Roblox is an example, but like, you know, we've talked about Netflix, we've talked about Spotify. if these are truly considered like mechanisms that are designed with the intent to to addict people and in particular children. I mean there are very specific sandboxes that are designed for children that use this and that are also billion-dollar companies that are also publicly traded, right? High-profile. My sense is like I don't know where you and and which are like in into an even greater degree like creator marketplaces, right? Like so so media is a place to like broadcast my thoughts or whatever and maybe some videos, but like a Roblox is a platform for me to build a product and deploy it and you know, but they nonetheless have algorithmic curation in discovering these things and they they you know, and they allow for you know, liking and that kind of things in certain context. So, I just I don't like it just seems weird to me that this

was the first place to start. Not that I would want to see any, you know, not that I would hope that like any particular company gets this kind of scrutiny. Not I'm just in, you know, I'm just don't have an opinion on that. But but it it it just seems like like Facebook and social media if you really wanted to explore like like these issues related to children, it feels like well the products that are designed to be used by children would be the the more obvious for starting point and also probably if these mechanisms are deemed to be especially addictive for children and then would probably also they're going to face like a greater challenge in adapting right? Is it is that the right way to think about it or is it just you know Meta's big, Google's big and that's why they started there?
You know, that is a good point. I I would say this when it comes to something like Roblox and and other similar platforms, what they would probably need to be cognizant of, especially after the New Mexico jury verdict, is how their platforms could be

used by real child predators to connect them with minors, right? Like that's where they're going to need to be wary. And and while the other product design stuff that we talked about, the addictive features, I'm a little skeptical of that part of it, I think companies should probably be very aware of and do things to prevent or at least limit the ability of unknown adults to interact with children or creating opportunities for them to do so. That's where I think these these platforms need to be especially cognizant. And maybe to your point, regulators and enforcers and investigators should have been focusing is really on that is more so than whether we we we don't like algorithmic recommendations or likes or autoplay. Maybe they should really been focusing on as New Mexico did to some extent. Are these companies doing enough to prevent unwanted

actions by adults to go after kids and use their platforms to do so? And there's always a limit, right? And there's always a trade-off. You can use a phone, you can use text messaging, you can use emails, right, to go after kids, too. But those are general purpose products that have so many lawful uses. We don't restrict how they're used in general because they can also be used to be terrible things. To some extent, instant, you know, messaging on these platforms could be analogized to that. So there's a limit to what you can do, but as a general matter, you don't want to create a platform like the Omegles and other ones that no longer exist for maybe good reason where adults can use the targeting abilities of those platforms to find children and do predatory things.
I see. Yeah. It it just feels like that the focus on these these mechanisms which are essentially ubiquitous is like an odd way to approach the harm angle as

it pertains to children. Like it just it just feels like well then if because there again for like these very large platforms that serve a very general audience, right? If you wanted to if you wanted to specifically scope this to the harms for children, it it seems odd to start with a broad-based general purpose social media platform where I'd assume, you know, children are not even in the the majority of users when there are platforms that are specifically designed for children,
right? No, no, you're right about that. And you know, we do have Kappa. It doesn't quite get it all of what we're talking about, but that is a federal law that was designed to protect the privacy of of children under 13. And that's been there's been proposals of that to extend it up to 16 under 16s and that kind of thing. So there there's other ways that this could be targeted to more specifically get at real harms and everybody agrees are harms to children. And these cases, the New Mexico case to some degree tries to go after those

things, but they're also way broader than that and will have implications way broader than that for free speech.
Yeah. No, I mean, I'm very familiar with with COP with Kappa and I mean, you know, having having worked in the mobile gaming space and it's just very relevant, right? And it's, you know, it's I I think like in in sort of
Oh, it has its problems, too. There's trade-offs in Kappa, too.
[laughter]
Yeah. No, I totally but I mean I I I guess you know the sense was the companies that I worked at like we always endeavored to go further than Kappa because we just wanted to protect children. It wasn't you know it wasn't a burden necessarily. It was it was something that we proactively did because we just the right thing to do. It just seems like the sort of these cases, and again, this is from like a lameness perspective, but if you're anchoring this to the child protections angle, but you're using this very sort of like broad brush in painting these totally ubiquitous mechanisms as addictive, then you're kind of like you either went after the biggest platforms

just because they've got a lot of money or you're actually more focused on the mechanisms than you are protecting children. And so like either of those it feels like, you know, is is is just not how you'd pursue this if you truly had the intent of remaking a system that you felt was was disproportionately damaging to children.
I think you're right. I think for litigators, both, you know, private plaintiffs, lawyers, and even even state AGs, when you have a hammer, everything looks like a nail. So they use the tools that they're familiar with and they have at their disposal here to go after the deep pockets and and quite frankly entities that that don't have the best PR right now and that's the ones they focused on perhaps instead of going after the worst actors first.
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Yeah.
Like that's I mean like that that's some that's a common use case, right? I mean is is and you know you imagine like well if this is the result of this then a lot of that's going to be dulled. It's like well just people having debates that

that yeah maybe get heated or whatever because they're passionate about whatever topic but but is is that a potential outcome of this?
Yeah, not only that but even in the bullying context, right? So I think social media companies will be extremely cognizant of speech that could cross the line in both cases. And what I'd say is the law on true threats under the first amendment actually limits what prosecutors or the law itself can do. But the fear of liability will likely lead to removal of a lot of protected speech. And this could include like things like inside jokes, satire, and other things that wouldn't amount to true threats or harassment because of the difficulty of an algorithm, even a third party person to understand that specific context. For example, I I used to be a public defender and I once represented a young man who was picked up for public drunkenness who had a long history with a set of particular small town cops and he threatened both officers in colorful and wild language. Right. But the jury only convicted him of one of the counts of terroristic threats. I was able to

successfully argue that one of the sets of threats was actually protected speech because they were not objectively capable of being taken as true threats. Like they're just wild things that somebody would was yelling. But the other charge against the other cop was considered a true threat because the defendant mentioned where the cop lived, the age of his daughter. He gave some personally identifying information. Just he actually might mean that one, right? online platforms are unlikely to make these fine distinctions if the underlying liability for like bullying, right, starts to extend to them. Both the protected and unprotected speech will likely just be removed. We see this in cases outside of that context even like when government officials don't like parody or satire that's targeted at them. They quickly just label it misinformation and they even put pressure on social media companies to take it down. Right? So, it'd be one thing if these platforms were making these moderation decisions as private entities responding to market signals,

whether they just don't like anything that looks like it could possibly harassing or bullying or even too contentious debating, whatever. But it's quite another if what drives their decisions is actually state action or the threat thereof. Under the first amendment, private actors and not the government are supposed to drive editorial decisions. We call it the marketplace of ideas, right? So, so we want social media companies to remove things because they see it as you know the right thing to do like you were talking about earlier when you guys were dealing with Kappa type issues. You really just cared about children's safety. You might even felt like there's a market demand for that. That's a very different thing than being like well if we don't do this we're facing the threat of litigation or regulation on this or other issues aren't even related to this that are just trying to you know harm us. So therefore, we're just going to do whatever government officials ask of us, whether explicitly or in back rooms to avoid more scrutiny.

So, so if I'm understanding correctly, you're saying that the idea here is that if there is this potential for liability, right? Like the nuance that's available in a jury trial is is not available in a quick, you know, millisecond algorithmic decision. And so it just ends up you just end up excluding a lot of speech because it's not worth the headache of the potential liability. And some of that might just be totally valid speech. But it if there's any possibility that it could could a if there's any possibility that could get classified as something that would open up the company liability and b if it's just impossible for the algorithm to make that distinction then it's just going to end up getting jettisoned.
Yeah. Yeah. I mean whether we're talking about bullying or defamation, right? That was my other example. Like if if the algorithm can't tell the difference between a Babylon B article, right, which is satire, and a true claim that's defamatory, then they're just going to pull them both down based upon, you know, somebody saying that that defames me or especially if it's a somebody that's powerful or a public official. That's

the world we could end up being in if these platforms could be held liable for third party conduct. That's what section 230 is supposed to prevent, like literally. [laughter] But that's the world we could end up being in if that's not the case anymore.
Yeah. And the misinformation angle is particularly worrying to me. I mean because that just feels like it's just defined by who's ever in office, right? I mean like that or that's that's how it would end up. That's where you end up if you get rid of
section 230. If because mis misinformation as a as a term doesn't mean anything.
It can in very limited circumstances, right? And our first amendment law has made them very limited indeed under the defamation context primarily or like you pretend to be a officer and you're not [laughter] like those are the types of things we're talking about or you pjure yourself in a courtroom. Otherwise you're pretty free to say whatever you want because a lot of things are in the end opinion but you're also free to some degree to lie. Most people don't then, you know, it's not a moral thing to do,

but legally [laughter] there's a Supreme Court case where a guy lied about being, you know, a guy that was a some kind of medal recipient in the in the military. There was a law on the Stolen Valor Act that made that illegal in and of itself. And the Supreme Court actually said that went too far. Um, that was a violation of the First Amendment. They had to be limited to situations where you lied to get some kind of maybe government money because you were a recipient or something like that, right? Otherwise, counter speech is the answer to misinformation, not not the government censoring anybody. So, yeah, there is there is a threat when you add the layer on top of that of online speech platforms potentially being liable for people posting misinformation, whether intentional or not, because now they have to be cognizant of what you're saying. And if they're cognizant of what you're saying, they may well just remove it if it doesn't seem like it's right to somebody that's powerful.
So, where do we end up if that's the case? because it seems pretty scary like I I mean so okay let I mean assume you know let's say that the the appeals are

unsuccessful
so a would that mean that you know we've reached the end of the broad platform immunity we've reached the end of section 230 and then b what is a result of that is that just you know people are only posting recipes I mean like what what's what's left I mean what what can you post because if if if these protections are are undertaken by these platforms to just avoid any risk of litig ation and it feels like they're going to a lot of speech is going to get excluded.
Yeah. I mean, if appeals courts don't reverse or limit these rulings, I think free expression online is in trouble. Not only will there be more litigation, but policymakers who have long wanted to do more will be emboldened to regulate more. Most distressingly though is that the threat of litigation from government actors at the federal, state, and even local level could allow for a lot of backdoor regulation that never receives proper public review. Backdoor censorship could become the norm if social media platforms increasingly feel the need to change how they do business to stay on the good side of regulators,

even without actual legislation or public administrative action or an actual lawsuit just to raise the eyebrow could suffice increasingly in light of a new the new world that we're in. The lesson of Murthy versus Missouri, which is a Supreme Court case, I believe it's last year, maybe the year before now, is that social media companies, if they're not willing to challenge the coercion of government themselves, those whose speech is ultimately effective, might not have standing to do so. That's the Supreme Court kind of ruled in that case. So, backdoor censorship, especially that done in the name of protecting children, could increase here. Just the threat of being sued under consumer protection laws as all these states are doing now could be enough to be like, "Okay, what do you want us to do?" You know, and it could be even on things unrelated to children protection. What do you want us to do so you don't sue us? And that might not even come to the light of day, right? Like it doesn't have to file suit for that to happen. So in in some my hope is that appeals courts will get these cases right and

that other courts won't be allowed to go down the same path because while juries certainly have their place in finding the facts the judges have to get the law right. If they don't, I think free speech is in trouble online.
I guess what's the scope, too? Because it's not just social media, right? Like we've been talking about. I mean, this ends up applying to the entire consumer internet, right?
Yeah. I mean, it goes way beyond social media. If it becomes about algorithmic recommendations automatically making you liable for whatever speech that we're talking about. So, you know, search YouTube and and we're not even just talking about the social media aspect of it, but literally like, you know, what video you see next, Netflix and all those streaming services, your podcasting service, anything that involves a like or a share or retweet or anything like that. All these things are going to be implicated. So, it could be disastrous not only for just speech, but just for how we do things online that we've come to accept. things would have

to drastically change I would think.
Right. And then to your point, I mean it's it's not even I mean it's the threat, right? I mean it's like all these companies need to sort of realign around the risk and that's you know like you said I mean everything is algorithmically curated now and or has a like or has a share or whatever and and so you're talking about Amazon, Netflix, Spotify. I mean like any any product that you use does that
you know Amazon's a great example that you'd have to think through in the the particulars because obviously when you're buying something it's a little bit different than a speech platform itself but if we're saying every time that they give you a recommendation for a new product based upon your prior buying history or search history on the site that they're not liable no matter who the third party is for what their product is if it's defective or whatever that could be a real problem right they might have to change because everybody's already complaining already that Amazon's doing a lot of first party selling that's in competition with it third party sellers. Well, if that's the world we're in, then not having third party sellers at all might increasingly

be in their interest,
right? So, and that that again is it might be bad for consumers, but it's certainly bad for those companies, small business.
What I mean that's a good what I had minded was the reviews. I mean, that's just people writing there and
reviews too. Yeah, you're a good point. Yeah.
And those are sorted, right? You know, and I feel like the big maybe elephant in the room that we haven't talked about is is just chat bots, a AI. I mean, then what happens there? I mean, if there's this responsibility here, I mean, like, and you think of, you know, algorithmic curation or optimization as a tactic that that is not protected, well, that's essentially what I mean, and a chatbot is doing.
Yeah. Yeah. Yeah. LM chat bots are going to be really interesting. And I've actually written in the past, I don't 100% think that chat bots would receive section 230 immunity because they seem to be more to me to be more analogous to like when you or me reads a whole bunch of stuff online and then integrates all that information into new speech. It

seems to me like it might be their own speech to some degree. There still will be questions about whose speech it is exactly in individual cases like when people try to get LLM to say specific things through their prompts over and over again at some point what does that when does that become their own speech especially when they republicize it and whether that's the LLM speech at that point or their own a lot of questions will still arise but I think a lot of those questions are going to arise more under the first amendment context than the section 230 context so in other words how does new laws that we're creating or even old products liability laws interact act with the First Amendment rather than section 230. And it'll be an interesting question. If you end up saying something defamatory because an LLM told you to or answered wrongly, maybe both of you will be liable to some extent. I'm not sure. There's going to be cases that work themselves through the system for that. But for a lot of other things that aren't outside of first amendment protection, but are protected speech, I think it's

going to be hard to hold either the chatbot or the person that's interacting with the chatbot liable for those things.
Ben, thank you. This was fantastic. I'd point everyone to the article that you wrote on truth on the market. It's called treating speech as a bug, not a feature. I'll link to that in the show notes as well, but I found it to be very informative and I'm sure our listeners will as well.
I really appreciate it. if they they would like to if they look up my profile on's website, we have a whole lot more of where that came from, whether it's on the truth on the market blog. We've also I've also done some amicus briefs and cases like the two jury trials and some others as well as regulatory comments and white papers and so forth. So, if anybody's interested, we have way more.
Cheers, man. Thanks so much for your time and have a great weekend.
Thank you. Appreciate the time.