from the stop-it-stop-stop-it dept
Have politicians all gone mad? On the Republican side, we have Texas and Florida trying to stop websites from moderating content, while on the Democratic side, we have New York and elsewhere trying to blame them for not moderating content. And then we have… California. Back in March we had warned about AB 2408, ostensibly a “bi-partisan” bill from Republican Assemblymember Jordan Cunninghan and Democratic Assemblymember Buffy Wicks. This bill shows that even when Democrats and Republicans team up to try to regulate the internet, they make an unconstitutional mess of things.
On Monday — the same day that the 11th Circuit rejected all of the most important parts of Florida’s social media content moderation bill as clearly, easily, obviously unconstitutional — California’s Assembly voted unanimously, 45-0 (though with a whole bunch of abstentions) to move forward with AB 2408.
The bill is very much in the traditional “but think of the children!” mode, and would allow parents to sue any “social media platform” if that parent believes the social media site resulted in the child becoming addicted.
The operative part of the bill says that social media sites have “a duty not to addict child users.” But what the hell does that even mean? While part of the bill says that this includes not using or “selling” a child’s data, another part says that “the development, design, implementation, or maintenance of a design feature, or affordance” cannot lead to addiction that creates any kind of harm.
But, we live in a time where any time anything bad happens, people who don’t want to take responsibility immediately blame the social media tools that were used. So, now, any time any of the painful or harmful things that tons of teenagers have gone through basically forever happens, parents can sue social media companies and blame them. Eating disorder? Self harm? Depression?
Those all happened long before social media existed, but under this bill, if your kid has any of that, you can sue social media companies for damages. This will open up a flood of absolutely frivolous lawsuits.
It also remains an obvious unconstitutional mess, even if you believe that the bill is well-intentioned. At that link, 1st Amendment litigator Adam Sieff explains why, even if the law is meant with the best of intentions, it’s not even remotely constitutional:
The U.S. Supreme Court has made it clear that the First Amendment protects publishers’ decisions to select, arrange and promote content to audiences as a basic exercise of their editorial control and judgment. The protection applies regardless of the medium of communication publishers use to convey information, whether they run a newspaper, cable network, website or social network. And the court has expressly held that the amendment applies to online speech and content moderation practices.
Critically, the rule prevents California, or any state, from enacting a law that would penalize an internet publisher for exercising its judgment about what kinds of content to publish and promote to its audience, just as it prevents California from enacting a law punishing a newspaper for its decisions about what to print on the front page.
It makes no legal difference that social media platforms often create algorithms to apply their editorial judgments. An algorithm is just a set of pre-programmed editorial rules that reflects value judgments made by real people about the kind of content to display and promote.
To punish a platform’s algorithmic promotion of popular content is, as a constitutional matter, no different than punishing CalMatters for recommending stories to particular users based on their browsing and reading history. Nor, ultimately, is it any different from punishing a tabloid magazine for publishing prurient content on its front page.
So much of this and similar laws seem to be driven by this weird moral panic that anything bad must be blamable on social media. There is little evidence to support this. And, indeed, it misses the complexity of all this. Just to take one example explicitly called out by the bill: eating disorders. As we have shown, multiple studies have argued that merely blaming talk related to eating disorders actually has done more harm than good, and that allowing the conversation to flow often leads to more “pro-recovery” content. The research also showed that attempts to ban such content don’t work because the people who want to talk about eating disorders are going to find a way to do so no matter what, even if they have to make up new words and phrases to make it work.
So if you’re a social media platform how do you deal with this? If you want to avoid lawsuits under this law, you’re likely to shut down any such content and discussions. But that won’t help, because kids will keep having those discussions, they’ll just come up with code words for it. And, because of that, it will be even harder for those trying to help those kids to recover to find and participate in those conversations.
The end result: websites getting sued in more frivolous lawsuits, and kids at even greater risk than before.
The only people this “helps” are parents who don’t want to accept some responsibility if their kids run into problems. That’s not to say that when kids have problems it is the parents’ fault. Sometimes that may contribute to it, though often it’s independent of that. But parents are so scared of anyone thinking they’re bad parents, that it’s quite tempting to have a target like a big social media company to sue.
This is an unconstitutional garbage law that is designed to appease guilty parents in the midst of a moral panic.
The bill still needs to pass the Senate and have the governor sign it, so if you live in California, reach out to your state Senator now and ask them to oppose this. Even if it’s well intentioned, it will do a lot more damage than good.
Filed Under: ab 2408, addiction, blame, buffy wicks, california, jordan cunningham, moral panic, social media