Meta Trial - End Run Around the 1st Amendment

WASHINGTON - EntSun -- News reports about the two giant verdicts against Meta, the $1.4 trillion trial against Meta in California, and numerous reports about the adverse impact of social media on children, have led many to opine that litigation is not likely to provide much relief or protection for children, and that legislation might therefore be necessary.

But just the opposite may be true; 1990s litigation against cigarette manufacturers - which is increasingly being compared to the current litigation against the social media giants - was able to force the tobacco industry to accept restrictive measures to protect children which neither Congress nor individual state legislatures could have put into place because of the First Amendment.

In short, a small band of individual lawyers and attorneys general was able to achieve with litigation what Congress couldn't do with legislation, notes "The Law Professor Who Masterminded Litigation Against the Tobacco Industry."

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He points, for example, to a ban on cigarette billboards - following the ban on cigarette commercials he achieved years earlier - and on the use of cartoon characters such as Joe Camel to advertise cigarettes. . . .

Public interest law professor John Banzhaf, who won two First Amendment cases in the Supreme Court, notes that many of the remedies being sought in the current Meta case in California could not be achieved through legislation because of limits on the regulation of speech imposed by the Constitution.

However, if litigation forces social media companies to agree to a settlement to avoid what some experts are calling potential "astronomical" judgments - as my colleagues did with big tobacco, says the professor hailed as "a Driving Force Behind the Lawsuits That Have Cost Tobacco Companies Billions of Dollars" - the social media giants can of course waive their constitutional rights, just a criminal defendants do every day, according to Banzhaf.

Plaintiffs in the California case are seeking to require Meta, among other remedies, to remove or disable certain so-called "addictive" design features for teens/young users including: infinite scroll, autoplay, quantification of engagement (e.g., "likes"), ephemeral content, beauty/similar filters, and engagement-optimized algorithms.

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But all of these, and perhaps other remedies also being sought, arguably impinge on the ability of the platform and its owners to "speak" to its users, and therefore any legislation which sought to impose these restrictions would probably be barred by the First Amendment, says Banzhaf.

Therefore, since very few laws can meet this very "strict scrutiny" First Amendment standard for speech, people who want major reforms to social media platforms should hope that the potential "astronomical" costs potentially imposed by litigation will force the companies involved to agree to serious limitations.

@profbanzhaf  http://banzhaf.net/   jbanzhaf3ATgmail.com