Section 230 Is Dying By A Thousand Workarounds, And Massachusetts Just Added Another One
from the pour-one-out-for-230 dept
We’ve been warning for a while now that Section 230 is dying by a thousand legal workarounds rather than a straightforward repeal, and the hits just keep coming. A few weeks ago, I wrote about how two jury verdicts against Meta in New Mexico and California should scare anyone who cares about the open internet, even if the instinct to cheer them on is understandable given how terrible Meta has been. Those verdicts adopted a legal theory that re-frames editorial decisions about how to present user-generated content as “product design” choices outside the scope of Section 230, functionally making the law irrelevant.
Now, the Massachusetts Supreme Judicial Court has gone even further. In a unanimous ruling in Commonwealth v. Meta Platforms, Inc., the state’s highest court has denied Meta’s motion to dismiss the state attorney general’s lawsuit, holding that Section 230 does not bar claims that Meta designed Instagram to be addictive to children, lied to the public about the platform’s safety, failed to properly age-gate underage users, and created a public nuisance. The court’s reasoning provides a clean, easily replicable template for any plaintiff anywhere to plead around Section 230, and it does so by mangling the statute’s text and ignoring key words while drawing a distinction between “content” and “content presentation” that collapses under even the slightest scrutiny.
Once again, since this always needs to be said in all of the articles about these rulings: Meta is a terrible company. It has spent years making terrible decisions. I don’t trust the company to make the right decisions even if only correct decisions were presented to it. Mark Zuckerberg deserves zero benefit of the doubt. But as I said last time, the legal theories being used to go after Meta here will not stay confined to Meta. They will be used against every website, every search engine, every forum, every email provider, and every small platform that makes any decision about how to present user-generated content. That’s what makes this ruling so dangerous.
Professor Eric Goldman, who has been tracking these cases more closely than perhaps anyone, put it bluntly:
This is not a good opinion for Section 230 on several dimensions.
First, as a state supreme court decision, it’s the final word for the Massachusetts state court system (unless the US Supreme Court intervenes). It provides a major beachhead for other courts to follow, both within Massachusetts and beyond.
Second, this court didn’t rely on the Lemmon “design defect” workaround. Instead, it said that the claim doesn’t relate to third-party content unless it’s based on the substance of the third-party content. This provides plaintiffs with another avenue to work around Section 230 in addition to the Lemmon/design defect workaround that other courts are accepting (even if they shouldn’t).
Third, as I explained, I don’t see any distinction between third-party content and the editorial choices about the manner of presenting that third-party content. By embracing that false dichotomy, the court invites plaintiffs to reframe their complaints to focus on content presentation instead of substance.
That last point is the most important part of the whole ruling. The court has now handed plaintiffs’ lawyers a magic formula: just say you’re suing about the presentation of content rather than the content itself, and Section 230 vanishes. Goldman lays out the playbook:
Here’s how a plaintiff’s argument could look: “I’m not suing about the third-party content, I’m suing about the design choices that elevated that third-party content over others.” These are literally the same thing in my mind. If this argument works, Section 230 is dead because plaintiffs will always embrace that workaround.
Looking at the court’s actual reasoning, things get messy fast.
Massachusetts’ complaint alleged that Meta “engaged in unfair business practices by designing the Instagram platform to induce compulsive use by children, engaged in deceptive business practices by deliberately misleading the public about the safety of the platform, and created a public nuisance by engaging in these unfair and deceptive practices.” Meta moved to dismiss on Section 230 grounds. The lower court denied the motion. Meta appealed.
The Massachusetts Supreme Judicial Court actually (correctly!) recognized that Section 230 provides immunity from being sued in the first place, not just a defense against paying up at the end. This matters procedurally, because immunity from suit means you get to appeal the denial of your motion to dismiss before trial — you don’t have to go through the whole expensive litigation process first and then appeal at the end. The court analyzed the language of Section 230(e)(3), and reached the right conclusion:
The plain meaning of “no cause of action may be brought” is that a suit may not be initiated in the first instance and the defendant cannot be forced to litigate the claim.
Great. The court got the procedural question right. Section 230 provides immunity from suit. Meta gets its interlocutory appeal. The whole point of Section 230, after all, has always been to get bad cases tossed early, before the ruinous expense of discovery and trial.
And then the court proceeded to deny the immunity anyway, meaning Meta now has to litigate the entire case on the merits despite supposedly having immunity from suit. The court gave Section 230 its proper procedural dignity with one hand and gutted it substantively with the other. Meta got to appeal early — and lost anyway. Now it faces full litigation on claims that Section 230 was designed to kill at the threshold. The outcome is a complete mess: the court has effectively turned “immunity from suit” into “the right to lose an appeal slightly faster.”
The heart of the court’s logic rests on a distinction between claims that impose liability based on the content of third-party information and claims that merely concern how that content is presented. To get there, the court engaged in a lengthy analysis of the phrase “treated as the publisher . . . of any information” in Section 230(c)(1), concluding that this phrase requires both a “dissemination element” and a “content element.” In other words, the court held that Section 230 only applies when a claim seeks to hold a platform liable for the substance of user-generated content it published — and that claims about design features like infinite scroll, autoplay, algorithmic recommendations, and notification systems target the how of publishing rather than the what, and therefore fall outside Section 230’s protection.
This ignores a long list of precedents — and the explicit statements of Section 230’s authors — establishing that the law was designed to protect platforms from being sued over any editorial decision-making, including how content is presented. To put this in perspective, it’s like saying that someone could sue, say, the evening news based on where they placed a story (top of the show or bottom?) and that the impact of how it was presented is somehow unrelated to the content itself. That makes no sense. But it’s the way this court has interpreted 230.
The court found that with respect to the unfair business practices claim:
The challenged design features (e.g., infinite scroll, autoplay, IVR, and ephemeral content) concern how, whether, and for how long information is published, but the published information itself is not the source of the harm alleged. Instead, the claim alleges that the features themselves induce compulsive use independent of the content provided by third-party users.
Meta tried to point out the obvious problem with this: without user-generated content, these design features don’t do anything harmful. Nobody’s getting addicted to infinite scroll through a feed of nothing. The court waved this away:
But the fact that the features require some content to function is not controlling; instead…to satisfy the content element, we look to whether the claim seeks to hold Meta liable for harm stemming from third-party information that it published. Here, the unfair business practices claim does not; the Commonwealth alleges that the features themselves prolong users’ time on the platform, not that any information contained in third-party posts does so. In this sense, the claim is indifferent as to the content published.
“Indifferent as to the content published.” No matter how many times courts (or media or politicians) make this claim, it never gets any more accurate. As I noted in my earlier piece about the California and New Mexico verdicts: imagine Instagram, but every single post is a video of paint drying. Same infinite scroll. Same autoplay. Same algorithmic recommendations. Same notification systems. Is anyone addicted? Is anyone harmed? Is anyone suing? Of course not. Because infinite scroll does nothing without content that makes people want to keep scrolling. The features and the content are inseparable. Saying the claim is “indifferent as to the content published” is a legal fiction, and everyone involved knows it.
Goldman makes this point through a newspaper analogy that’s worth quoting at length:
I don’t see any distinction between third-party content and the editorial choices about the manner of presenting that third-party content. By embracing that false dichotomy, the court invites plaintiffs to reframe their complaints to focus on content presentation instead of substance. … As an analogy, consider a dead-trees newspaper’s decision to publish a story: it is equally part of the newspaper’s editorial prerogative and publication decisions to decide to publish the story at all and to decide if the story should appear on the A1 front page or some interior page; what size typeface to use for the story headline; whether the story runs all on the same page or continues on a later page; etc. As applied to Meta, the decision to vary the delivery timing of new third-party content items (as one example) is just as much of Meta’s publication decision-making process about publishing the third-party content as whether the item will be published at all.
The fallout here goes way beyond just Instagram. A search engine decides to rank certain results higher than others — that’s a “design choice” about content presentation, not about the content itself. A forum uses “newest first” sorting — design choice. An email provider’s spam filter decides what goes to your inbox — design choice. A blog allows comments and displays them in threaded format — design choice. Under this court’s reasoning, all of those are potentially outside Section 230’s protection, because they concern how content is presented rather than the content’s substance. Every editorial decision a website makes about the display, ordering, timing, or format of user-generated content is now potentially a “design” claim that evades Section 230.
Especially given that the whole premise of these lawsuits is that these “design choices” are engineered to “addict” users — a claim that none of the cases have actually established as a clinical matter. They show signs of companies trying to make users of their products like and use them more. Which is what basically every company does. It’s sort of the nature of business. Should a state AG be able to sue a restaurant because its food was too delicious and people ate too much of it? TV shows end on cliffhangers. Books have page-turning chapter endings. Are those addictive design features subject to state AG enforcement?
There’s another serious problem with the court’s statutory analysis that Goldman flagged, and it’s frankly embarrassing for any court to make, let alone a state supreme court. Section 230(c)(1) says: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” The court spent pages analyzing what “publisher” means, diving into common-law publisher liability, legislative history, and the Cubby/Stratton Oakmont story line. But as Goldman observed:
Worse, the court extensively analyzes the word “publisher” but doesn’t say a word about the companion “speaker” term that appears two words later in the statute. This is another indicator of results-oriented decision-making. No matter what the court says “publisher” means, if the court disregards one of the other 26 words that has direct relevance to its meaning, the court is failing its #1 job of reading the damn statute. This omission is extremely embarrassing for the court, and it thoroughly undermines the credibility of the court’s recitation of precedent.
Whatever narrow common-law meaning you might ascribe to “publisher,” the word “speaker” is right there, broadening the scope. The court just… pretended it wasn’t. When a court conducting what it claims is a careful “plain meaning” analysis of a 26-word clause of the statute at the center of the case manages to ignore one of the operative words, that’s more than a tell. As Goldman noted:
When courts decide to review a 1996 statute from scratch in 2026, after over a thousand Section 230 cases have been decided, that’s usually an indicator that they are engaging in results-oriented decision-making, they don’t like the precedent, and they need another way to reach a different result.
Then there are the deception claims, which the court dispatched with even less effort. Massachusetts alleged that Meta lied to the public about Instagram being safe and not addictive. The court held that because these were Meta’s own statements, Section 230 obviously didn’t apply — the statute only protects against liability for third-party content, and Meta’s PR statements are first-party speech.
That much is technically defensible as a Section 230 matter. But the underlying theory has its own problems that the court didn’t bother grappling with. What does it mean for a company to “deceive” the public by saying its product is “safe”? Almost nothing is 100% safe. Cars aren’t perfectly safe. Food isn’t perfectly safe. Playgrounds aren’t perfectly safe. As we’ve written about before, the social media moral panic has systematically confused risks with harms. Something can carry risks without every user being harmed, and a company saying it takes safety seriously is not a guarantee that no bad outcome will ever occur to any user. If “we prioritize safety” plus “something bad happened to a user” equals fraud, then every tech company, car manufacturer, pharmaceutical firm, and food producer in the country is perpetually liable for “deception.”
Goldman noted that there are “obvious puffery/opinion defenses that could apply here” but weren’t addressed in the Section 230 analysis. That’s true. But the more fundamental problem is that the court’s framing of the deception claims, combined with its evisceration of Section 230’s applicability to the design claims, means all four counts now proceed to full litigation. The “public nuisance” claim got even less analysis — a single footnote saying that because the other claims survive Section 230, so does the nuisance claim that’s based on them. Goldman rightfully calls out how weak this is:
I’ve previously complained before about courts’ complete undertheorizing of how and why public nuisance claims can apply to social media, and this court doesn’t do any better. In a footnote, here is the court’s entire discussion about Section 230’s application to the public nuisance claim: “Because we conclude that § 230(c)(1) does not bar counts I to III, we also conclude that it does not bar the Commonwealth’s public nuisance claim, which is predicated on the same allegedly unfair and deceptive practices in counts I to III.”
Put it all together and the picture for Section 230 is bleak.
A few weeks ago, juries in New Mexico and California found Meta liable using the “design defect” workaround — arguing that features like infinite scroll and algorithmic recommendations are product design choices, not editorial decisions about third-party content. Those verdicts relied on the framework from Lemmon v. Snap, the somewhat problematic Ninth Circuit case that carved out a design-defect exception to Section 230, and which opened the floodgates to lawsuits like the ones we’re discussing here.
Somewhat oddly, the Massachusetts court explicitly declined to follow the Lemmon framework. It developed its own, different workaround: Section 230 only applies when a claim is based on the substance of third-party content, and claims about content presentation fall outside its scope. This is, as Goldman put it, “another avenue to work around Section 230 in addition to the Lemmon/design defect workaround that other courts are accepting.”
So we now have at least two distinct legal theories for pleading around Section 230, both blessed by courts, both available to any plaintiffs’ lawyer nationwide. And both accomplish the same thing: they take the editorial decisions that platforms make about user-generated content — the decisions that are the very heart of what Section 230 was designed to protect — and reclassify them as something else. “Design choices.” “Content presentation.” “Product features.” Call them whatever you want. The result is that Section 230 protects nothing that matters.
Goldman’s metaphor for all of this is apt:
Even if this opinion doesn’t outright eliminate Section 230 in Massachusetts, it’s a sign of how 230 workarounds keep proliferating, contributing to the swiss cheese-ification of Section 230. When the bubbles in the swiss cheese become too large, the cheese wedge lacks structural integrity and falls apart. That is where 230 is heading, if it’s not already there.
And this brings us to the thing that matters most, the thing that gets overlooked in every one of these cases: the procedural advantage of Section 230 was always the point. The whole reason Section 230 exists is to get bad cases thrown out early, before platforms have to spend millions in discovery and trial. Even if the First Amendment eventually protects many of the same editorial decisions, it does so at the end of expensive, protracted litigation. Section 230 was designed to get you out at the motion to dismiss stage.
And it wasn’t just the procedural advantage that mattered — it was the certainty. Platforms could make editorial decisions about how to present content knowing they were protected. That freedom meant editorial reasoning could lead, rather than legal risk-avoidance. A lawyer consulted before every design decision will never tell you to make the best call for users — only the least legally exposed one.
All of that has been thrown out the window. The certainty. The quick resolution. The ability for editorial reasoning to lead, rather than lawyerly concerns. These court rulings chip away at Section 230 bit by bit, and with it the ability for anyone to freely host content online without fear of getting sued.
The Massachusetts court’s ruling is the textbook example of how that benefit has been destroyed. The court correctly held that Section 230 provides immunity from suit — not just immunity from liability. It correctly allowed Meta to take an interlocutory appeal on exactly that basis. And then it ruled that the immunity doesn’t actually apply to any of the claims in the case. Meta exercised its right to an early appeal and got told it has to go litigate the whole thing anyway.
So what was the point? Meta got to go to the state supreme court, argue about immunity from suit, and then get sent right back to trial court to face all the same claims. Every future defendant in Massachusetts who raises a Section 230 defense will look at this ruling and know that the “immunity from suit” is a mirage. You get the appeal. You just don’t get the immunity, so long as the lawyers on the other side say the magic words. Which all of them will.
This is exactly the dynamic I warned about in my piece about the California and New Mexico verdicts. Even if these legal theories eventually get sorted out at the Supreme Court level, even if the First Amendment eventually provides some backstop, the practical reality is that Section 230’s core function — early dismissal of meritless cases — has been gutted. Every plaintiff’s lawyer now knows how to draft a complaint that survives a 230 motion to dismiss: just say “design” instead of “content.” Say “presentation” instead of “publication.” And you’re in. Discovery. Trial. Seven-figure legal bills. The whole show.
And smaller companies know this. Meaning they will either avoid hosting content altogether… or we’ll have the most powerful heckler’s veto in existence. Anyone who wants any third party content removed just needs to threaten a lawsuit using the magic words. And the mere threat of legal bills will mean the “smart” move will be to remove the content. All sorts of forums will suffer. Think about how Republican AGs will use this to argue that any site hosting LGBTQ+ content is causing harm. Think about the plaintiffs’ lawyers who will use any claimed “design” flaw as leverage for a shakedown settlement. If you thought that copyright trolling was bad, just wait until we see an entire collection of plaintiffs lawyers suing (or just threatening to sue while really seeking a settlement) any website they can claim made a “design choice” that leads to harm.
That’s the ballgame for small platforms. For independent forums. For startups trying to compete with the giants. Meta can absorb this. A new social media competitor cannot. Congress doesn’t need to repeal Section 230. The courts are doing it for them, one cleverly worded ruling at a time.
Filed Under: addiction, content presentation, design features, editorial freedom, massachusetts, section 230
Companies: meta
Comments on “Section 230 Is Dying By A Thousand Workarounds, And Massachusetts Just Added Another One”
Section 230 in the real world
I’m going to buy a car that’s really fun to drive…and then sue the manufacturer for making it enjoyabl–I mean, addictive.
The next album that is so good I listen to it on repeat, I’m going to sue the artist.
If this comment is not elevated to the top, I’m going to sue Techdirt for its “content design decisions.”
Actually, I spend far too much time reading Techdirt, so I should probably just sue them as a public nuisance.
What's this?
Techdirt community members with Techdirt Credits can spotlight a comment as either the "First Word" or "Last Word" on a particular comment thread. Credits can be purchased at the Techdirt Insider Shop »
I think I’m done reading Techdirt
Yeah, so for almost ten years I’ve been a reader for Techdirt, ever since the days of Net Neutrality and SOPA-PIPPA. And for ten years, it has been a major contributor to my knowledge of the internet… but also to my anxiety disorder. This isn’t a decision I want to take lightly, but it’s been really hard to read your content on an emotional level. It’s been so heavy and depressing writing-wise that it has contributed to my anxiety episodes. In fairness, it is heavy and depressing. I’m also against this hatch job against S230. This decision is on a personal level. I don’t have any animosity against anyone on Techdirt. Me gone probably won’t make much of a difference.
Please understand Mike. I just want to be happy.
Re:
No-one will blame you. It’s a fucked up world at the moment and at some point we all have to draw a line and look after ourselves.
Good luck.
Re:
If you think it’s hard for the reader to read how screwed up the world is becoming, just imagine what it’s like for the writer in question. You know all the ins and outs and exactly how a particular development is going to continue to screw things up. What’s more, you’re going to be seeing a lot of things that the reader ultimately doesn’t see because you can’t write about everything on top of it all.
In the late 2000’s (!!!), I was writing in an environment where two websites acted as rivals complete with writing staff on both. I ended up working for one and then writing for another, so I got to see WAY more internally than what most staff members ended up seeing.
The biggest reason people end up leaving the profession of writing news content online is stress. Whether it is keeping up with the volume of news content or the stress of the content that is being written on, most people end up leaving this role either directly because of those reasons or citing that as a contributing factor.
I tell people that it takes a very particular kind of person to be able to withstand all of this and continue to write about these things. Given that of the aforementioned two news staffs I worked with in the past and the fact that I am literally the sole survivor out of both of them in terms of continuing to write content, I think my experience is proof of this in action. How much crap can you handle seems to be a big determining factor of how long you can last.
Believe me, there were certainly days where I just wanted to let it all go and just leave all of this stress to some other random person interested in taking up the mantle. The problem is that decades of experience is being left behind if I did that, so I still continue to fight (even if it rarely gets recognized as an effort at all).
There’s no shortage of people out there that love to shit on the writers work. Whether it is personally disagreeing with what the facts say, telling them that they are the worst writer out there because they disagreed with a stupid comma placement and can’t be treated seriously, or in my case, not even being paid to do the work in the first place, the job of the writer in the world of news is WAY tougher than people realize. Us news writers don’t get anywhere near the credit we deserve most of the time (TechDirt is a bit of an anomaly on that front).
Re:
Hey,take care. i have enjoyed your comments over the years. Best wishes.
Re:
Hopefully this ruling is overturned fast.
This comment has been flagged by the community. Click here to show it.
Re:
It’s not a hatchet job. Techdirt just loves proclaiming doom whenever something actually goes to full trial instead of getting tossed out by their favorite law.
This article was written by the same guy who claims Bluesky, the company he’s on the board of, was “too busy” to announce $100 million in funding last year from Bain Capital Crypto, and also thinks that the Internet can be saved from major corporations by using Claude Code to make personal widgets and chat apps. He’s not interested in honest discussions about the Internet, and that includes spinning anything that interferes with his favorite law expanding infinitely in scope as doom-worthy.
A strategic victory for Meta (and X and others)
They don’t care if they have to engage in protracted and expensive litigation: as you note, they can absorb that. They care if their upstart competitors have to engage in protracted and expensive litigation, because: they can’t. It will inevitably wreck them and/or make investors extremely reluctant to back them, precisely because they can be wrecked with relative ease.
This was always the endgame.
I actually agree with the ruling for the most part.
I think it has always been a farce to pretend that these websites, almost all giant billion dollar corporations now, do not have as much control as they do.
“That’s the ballgame for small platforms. For independent forums. For startups trying to compete with the giants. ”
I would love to hear how you think this could be applied to forums. That seems just like baseless fear mongering.
It’s already impossible for startups to compete on the social media space because it isn’t financially worth the effort.
Re:
Moms For Liberty, or the Texas Attorney General, could sue an independent web forum for queer people, on the basis that their site design is too alluring and thus lures people under 25 (whose brains are “not fully formed” according to pop psychology) into spending too much time there.
That’s a hypothetical I thought up in a few seconds; I’m sure that others could devise more examples. It might sound like an absurd hypothetical, but right-wingers have sued at every opportunity and judge-shopped for the worst hacks on the bench… So, yeah, feeling that nothing is safe is not unwarranted.
Re: Re:
The problem their is our court system. What you are saying is that billion dollar companies should be completely off the hook for every single thing they did it make their platforms addictive
Re:
The law doesn’t just apply to billion-dollar companies. It protects Wikipedia. It protects Bluesky. It protects Dreamwidth. It protects individual Mastodon instances. It protects TechDirt. It protects personal blogs. It protects you.
Acting as though the Internet is synonymous with two or three giant corporations is an excellent way to get laws and rulings that only giant corporations have the resources to survive. Zuckerberg, Musk and the Ellison family win, while you and I lose.
Re: Re:
No it doesn’t.
Someone the size disney could come down on techdirt and it wouldn’t matter what the law is or isn’t because they would be bankrupt by the end of it.
Re: Re: Re:
Except Section 230 gets rid of those bogus cases at dismissal – Disney wouldn’t be able to drive up costs and force them into bankruptcy. The high costs of lawsuits are mostly in discovery, and dismissal ends the suit before that
Re: Re: Re:2
Which is literally the point of the legislation and this article.
Re:
What you are really arguing, like these plaintiffs and the court itself, is that people are so fucking stupid that infinite scroll can destroy their lives. And if that’s what people arguing this believe, then they shall be treated as such.
Re: Re:
Alright. So no seatbelts, no gun safeties, no loan restrictions, just let the people be harmed, huh? Is that really the idiotic argument you want to make?
Re: Re: Re:
Two things:
Re: Re: Re:2
What safety measures do Mike & Co. even advocate for? “Fix Societal Problems” has been the refrain. “Educate People”, “Expand Mental Health Care”, and more. Good policies, but more-often-than-not the only policies offered up in Techdirt articles about harms online, and ones that feel like they let the companies and the shit they do/have done off the hook all too easy.
It reminds me far too much, in an uncomfortable manner, of the way gun control is talked about in pro-gun spaces; education and mental healthcare that will take years to actually bear fruit (if they bear fruit at all), but putting more regulations on the guns themselves? It intentionally never comes into the equation.
Re: Re: Re:3
So your solution is “make things worse, but make some idiots feel like they’re doing something.”?
I’m sorry but fixing societal problems is a massive fucking job. And yes it takes time and doesn’t bear fruits immediately. But the solutions people like you are advocating LITERALLY MAKE ALL THIS WORSE and do fuck all to deal with the societal problems.
I’m so fucking sick of people who keep saying that doing the real work is too difficult, so let’s do the feel good thing that we know makes shit worse.
Re: Re: Re:4
As I heard someone put it recently: The revolution is not an event, but a process. The whole point in trying to change things from the ground up—in going from the smaller issues to the larger ones—is that fixing the smaller issues lays the foundation for the sociopolitical change necessary to push for fixes to the larger issues. Thinking that a massive revolutionary change to all of society with widespread acceptance in a short amount of time is foolish. Any such change would require an event so drastic that it forces such a change upon us—I’m talking something on the level of, say, the September 11th attacks—and there’s no such event here.
Re: Re: Re:5
I think that ensuring that companies face consequences for intentionally designing their social media products to be addictive – working with psychologists and everything, as we have on record here with Meta – is a part of fixing issues both small and large.
Re: Re: Re:6
Sigh.
That is not what’s on record. You’re an idiot.
Yes, they designed their products to keep people engaged. So does every product maker in the world. It’s not a crime.
Re: Re: Re:4
The solutions I would have loved to see, well, like I’ve said many times before, we coulda had AICOA and OAMA, actual regulations and measures with teeth, but you and your friends got heart palpitations at the idea of an actual tech regulation getting passed while ignoring marginalized people saying that “Hey, this would actually be good and improve things.” Antitrust like ACOA/OAMA would have helped solve some societal problems, like giving LGBTQ+ people and countless others more options and more freedoms.
And if we had AICOA/OAMA on the books, Apple and the Trump Administration wouldn’t have been able to so easily shut down ICEBlock. Would also have been cool to have AICOA/OAMA to aid with the whole Resonant Computing thing y’all came up with.
More from Greer’s article:
We were on the cusp of real antitrust regulation with teeth that would have brought real, concrete changes in the near-term. You and your pals helped shoot it down by banging pots & pans and proclaiming it’d be one of those “Death of the Free and Open Internet ™” catastrophes. And then y’all argue for education initiatives and mental health care expansions that will take a decade or more to even begin solving anything.
And alongside that, on your podcasts recently, you’ve been talking about this paper you have in the works where you do have solutions and ideas that go beyond “Fix Societal Problems”, but rather than regulations or antitrust, you use the language of “incentives”. One example you picked out from what you’ve been writing, if I recall, is the idea that if a tech company pinky-promises to behave in one area, they get some form of “immunity” from this or that in another area. If that’s really something you’re arguing for: Are you that gullible to think that these companies won’t just take whatever benefits are given to them under that system, shirk their pinky-promise, and then use their vast resources to tie up litigation around them lying about said pinky-promise in court for years?
Re: Re: Re:5
AICOA and OAMA were not good laws. They were yet another set of “we must do something, this is something, we will do it” laws. There were good components in them, but they were saddled with anti-LGBTQ nonsense, and elements that would have prevented companies like Apple from banning Parler or things like that.
There were simple fixes for that, which people suggested, but Congress refused to add them because the GOP would have bailed.
That alone should have been the fucking clue that the bills were broken.
I get it. You’re mad, so you’re willing to pass bad bills in the stupid, short-sighted belief that magic will happen and the laws will somehow magically make bad companies be good, but won’t ever at all be abused.
You live in a fantasy world.
Go away and come back when you’ve grown up and can deal with the real world.
This comment has been flagged by the community. Click here to show it.
Re: Re: Re:6
Idunno, I trust actual LGBTQ+ people like Evan Greer more on what bills cause actual harm to the LGBTQ+ community. Better than trusting tech lobbyists like Chamber Of Progress and the professional hand-wringers on Techdirt.
It was Schumer being Schumer alongside tech lobbyists that sought to drive a wedge in-between the bipartisan support the bill had that killed it.
And the whole content moderation issue was weak. I’ve said this before, but Public Knowledge had a whole piece about it.
The Public Knowledge piece proves that this is a bold-faced lie. Apple would not have been required to carry Parler, or any other app. The GOP threatening to “send in the trial lawyers” was garbage posturing that they would not have been able to back up for multiple reasons, including this:
Google, Chamber Of Progress, Techdirt, and more, all engaged in moral panic and sowing FUD over a tech antitrust regulation bill that had widespread public support and a bipartisan shot at passing. Y’all were a part of the same garbage that y’all complain about everyone else doing, y’all won, and we’re all the worse off for it.
Re: Re: Re:6
Sounds similar to your “incentive” solutions you still haven’t revealed that sound an awful lot like the way people gave tax incentives to ISPs to build but they pocketed the money and ran.
Re: Re: Re:
This is the kind of comment you make if you were the kid whose parents had to make up special rules just for you, like no eating paint chips, stop licking doorknobs, don’t shine the flashlight in your eyes. Just because you aren’t responsible enough to be left alone in a room with scissors doesn’t mean other people need the same level of supervision and patronizing.
Re:
You seem stuck in a perspective that the purpose of every social media platform is to become as popular as Facebook has been at its peak. Alternative platforms are often niche ones that aren’t interested in becoming that popular and statistically can’t because their target audience either isn’t large or doesn’t grow much.
They deserve to survive despite your lack of imagination in how these attacks could affect them.
Re: Re:
The size of the platform doesn’t matter for the dozens or hundreds of laws internationally that you technically have to follow.
The funny thing though is, if it was a smaller entity we wouldn’t be hearing this part. We would be hearing how they chose to voluntarily shutdown because they cannot fund defending themselves, or giving into it, like we do for copyright and trademark cases.
If the Supreme Court doesn’t take up the meta case, they will probably take it up for a more sympathetic client.
I imagine the pro and anti abortion people calling each other dangerous across state lines won’t be far behind this ruling.
As I did over in ATproto-world, I’ll quibble with this part. I’m not sure I’d call their 230 work-around a separate one from Lemmon v. Snap. It’s more like … a codification of the theory that ambulance chasers wanted Lemmon to be.
In Lemmon, the argument went that the harm didn’t depend upon conveying the content to a third party at all: The “speed filter” allegedly encouraged unsafe driving because it motivated people to make a particular kind of video. My analogy in my pro se amicus brief (yeah, I’m that kind of weirdo) was that it’s like a sweepstake. Suppose that Snap had run a contest where the condition for entry was a video showing unsafe driving. Then they’d be encouraging unsafe driving in a way independent of how or if they convey those videos to other users. That kind of potential liability logically shouldn’t stretch to all “product design”.
What the Massachusetts SJC has done is to say, “No no no, Lemmon doesn’t let you plead around 230 in the way you want, but our ‘do not mention the content of the content’ workaround does.” See footnote 31: Lemmon is distinguished because in the current case, “the challenged features are publishing tools that control how Meta publishes content to users of its platform”. Trying to parse this trainwreck, I think it repudiates Lemmon as grounds for “social media addiction” lawsuits and offers an alternative workaround.
Section 230 in the real world
I’m going to buy a car that’s really fun to drive…and then sue the manufacturer for making it enjoyabl–I mean, addictive.
The next album that is so good I listen to it on repeat, I’m going to sue the artist.
If this comment is not elevated to the top, I’m going to sue Techdirt for its “content design decisions.”
Actually, I spend far too much time reading Techdirt, so I should probably just sue them as a public nuisance.
This comment has been flagged by the community. Click here to show it.
Section 230 covers the content of users, not the algo. Yes, I know you’ve made claims it covers the algo, but you’re an idiot who knows nothing about section 230.
Meta is being held liable for THEIR content (the algo), not those of their users.
I look forward to your ad hominem filled yet argument free rant. You’ll probably cite your articles as evidence, etc, etc.
Re:
…says the guy whose entire argument is “you’re dumb” and doesn’t cite a single fact to back up even that argument.
This comment has been flagged by the community. Click here to show it.
Re: Re:
I literally do all the time. And when I do it, for you, you of course ad hominem because you don’t like the data presented. SO I don’t anymore, for you.
Regardless, that is not how section 230 works. The Algo is the platform’s speech (something Mike is happy to point) not the Users. Section 230 covers the users speech, not the platform’s. Mike has tried to pretend otherwise, for decades. He is completely, utterly wrong. He is so wrong that you don’t actually see a refutation of that idea cuz he’s nearly the only idiot that thinks that.
There’s literally dozens of other people on this article pointing that out.
And at least I don’t try to use myself as a citation, which Mike does all the time.
Re: Re: Re:
Your illiteracy is not a valid citation.
Re: Re: Re:
No, you don’t. The vast majority of your posts can be boiled down to three sentences: “This is my opinion. This is an insult aimed at people who don’t think like I do. This is me being angry that Trump won the election for some reason.” If you cited more facts and offered actual sources for those citations—and I mean sources with credibility instead of blatantly partisan outlets that have every reason to fudge/lie about data for their interests—you might not get flagged as much as you do. Toning back on the insults and the inexplicable anger over getting everything you voted for might help, too.
You tend to cite sources that have a specific partisan lean, and that lean colors that source’s credibility. You don’t have to cite “far left” sources (and there’s no mainstream “far left” media you can even cite in the first place), but you would do well to cite sources that don’t have the stank of right-wing partisanship on them.
You ever think, for even a second, about how your approach to disagreeing with any point raised by a Techdirt article or a commenter in the comments—insults, anger, acting like any disagreement with you is an existential threat—kind of ruins any point you could have made if you had chosen to not be a dick about it?
Like, I disagree with Arianity on a regular basis, but they’re generally not dicks about their disagreements with anyone (including me), so I’m more than willing to hear them out even when we disagree on a point of argument. That’s how we get a better understanding of each other’s positions and points, even if we end up agreeing to disagree. You just come in going “THIS IS MY POINT, FUCK YOU” all the time. That approach is going to get you flagged on sight, as well it should. Don’t like it? Don’t use that approach.
And if you hadn’t proven yourself to be wrong about a great many things you say you’re always right about—like, say, non-discrimination law—maybe people might listen to you. But you have. So they don’t.
In the past hundred posts I know you’ve made, you’ve cited a credible source for a claim of fact all of maybe once. Saying “Mike’s wrong” or “I’m right” is not a citation of fact. Linking to a source that cites facts backing up a claim is a citation of fact. Do that more and maybe you’ll rebuild your non-existent credibility. But until that day comes? Enjoy being flagged every time you post—because that state of affairs won’t change until you do.
This comment has been flagged by the community. Click here to show it.
Re: Re: Re:2
See that’s funny, cuz that’s literally all you and Mike do, cake boy.
…kinda skimming here…
I literally think most of you are insane far left retards and I’m just here to remind you the bubble you live in is not real life.
NR is a credible source. No, you don’t get to say “well, they’re right wing”. NYT is left wing. So what?
That’s exactly what I’m talking about. All you have is ad hominem. If your chosen, far left outlets don’t cover it (and they choose not to, in very coordinated fashion) then you think you get to ignore the facts you don’t like.
The conservative (in all senses of the word) outlet who tells you facts you don’t like is still credible. Go fuuck yourself you disengenuous fuuck.
Re: Re: Re:3
Yeah, you skim all the time. How would you know if Mike cited a source since you wouldn’t click through or even finish the article, especially since the article often addresses the bullshit you spew.
This is hilarious. “I’ve taken time out of my echo chamber to tell you that you’re all wrong and my echo chamber is real life.” Every accusation is a confession. You’re steeped in propaganda. Your Overton window is so skewed that you think the NYT is left wing. Do you think Ronald Reagan was left wing too?
Every accusation is a confession…
If it were credible, you could find a neutral source that says the same thing. But you don’t cite anything.
This comment has been flagged by the community. Click here to show it.
Re: Re: Re:4
It’s just that you have so little of value to say, amongst so much noise.
Re: Re: Re:5
If you skim, you wouldn’t know.
“I didn’t read it so I know exactly what’s in it.”
This admission discounts every assertion you make…and explains what we already knew, that you don’t read the articles, which is why your bullshit is often already addressed.
If you don’t understand what’s being said, it makes a lot of sense that your most common refrain is, “nuh uh, you’re wrong!”
Re: Re: Re:5
Pot, kettle, black.
Re: Re: Re:3
And yet, our opinions are informed by actual facts instead of whatever right-wing propaganda you’ve been feeding yourself. Whenever he cites facts, all you do is go “nuh-uh to your uh-huh” without offering any counter-citation (or a credible one, at any rate). Vibes alone do not make your argument credible.
I’m reminded of the well-known political compass template, in that you think the average Democrat lawmaker is, at a bare minimum, on the left side of the compass when, in reality, they’re about a quarter of the way to the right. I’d probably sit closer to the center than I think I would despite believing in leftist ideas such as “people should have free access to the necessities of life”. For all your whining about political partisanship, you’re too afraid to admit that most lawmakers—regardless of their party affiliation—are far closer to being far right than far left. If even I can recognize that fact, why can’t you?
…says someone who encases themselves in a bubble of right-wing propaganda. By the by, how do you feel about Trump depicting himself as Jesus Christ after arguing with the Pope and threatening to do a genocide?
Barely. It has a known right-wing bias, which does diminish its credibility somewhat.
The New York Times is not left-wing. If it were, it wouldn’t be trying so hard to sell the luxury hatred that is transphobia by being consistently transphobic for years.
No, that’s all you have, or at least that’s all you offer. All you ever do is insult people, act like your opinion is objective fact even in the face of actual facts, and get angry over having to defend/justify the actions of a government regime that has cost the United States a ton of power, status, and credibility around the world. Even now, you’re getting angry at me for pointing that out, and you’re proving it by using a slur for the developmentally disabled. The only reason you’re even using that slur now is because right-wingers think Trump made using it “cool” again. I’m honestly surprised Mike hasn’t tossed that word in the spamfilter, all things considered—and the fact that he hasn’t should put to rest the lie that Mike is an “extreme leftist”.
There are no “far left” outlets in mainstream media. At best, you have centrist outlets that dip their toes into leftist positions but are often sympathetic to right-wingers/conservatism. I again point to the New York Times and its years-long effort to push the Overton Window in a direction that legitimizes transphobia. If the NYT were “far left”, it’d be pushing in the opposite direction.
I told you that the New Republic article you cited seemed credible despite the site’s rightward lean. Credibility is earned, not given, and a right-leaning news site loses points by default for aligning itself with a political ideology that values bullshit. If you think it doesn’t, all you have to do is look in the Oval Office. The apotheosis of modern American conservatism is the sitting President of the United States. You voted for that—and you won. So why are you so angry about that?
Re:
If an argument free rant is what you’re looking for, scroll down to Azuaron’s long-winded stream of unconsciousness below.
I mean yeah, if you sue about the first party stuff instead of the third party stuff, 230 doesn’t apply. It goes against the intent of 230 in the sense of “this adds a lot of uncertainty”. But in terms of “first party vs third party”, it doesn’t. From Goldman:
As an analogy, consider a dead-trees newspaper’s decision to publish a story: it is equally part of the newspaper’s editorial prerogative and publication decisions to decide to publish the story at all and to decide if the story should appear on the A1 front page or some interior page; what size typeface to use for the story headline; whether the story runs all on the same page or continues on a later page; etc.
It is the newspaper’s editorial prerogative to decide those things. It’s also pretty clearly first party speech? And that’s something the text of 230 doesn’t really handle. Basically all of that interpretation comes out of Zeran and follow ups.
I mean, it depends on what you mean by unrelated. It’s unrelated in the sense that putting at the top or the bottom can be done regardless of the content. It’s not completely unrelated, in the sense that a blank box wouldn’t be addictive. Your own theory of violative acts clearly covers exactly this. If the liability is coming from where it’s placed, the party committing the violative act is the news in that case, not the person who wrote the content.
They should’ve explicitly put that in the law. (Also, this is inconsistent with e.g. Roommates). This is kind of the problem of relying on precedent, never mind the risk if Zeran never established such a broad interpretation to begin with.
Making it about deception doesn’t mean it has to be 100% safe. It’s not “we prioritize safety” plus “something bad happened to a user” equals fraud, it’s “we say we prioritize safety” plus “we made choices/tradeoffs knowing it would hurt safety”. Bad outcomes will happen, including some you weren’t aware of, and you can’t control that. What you can control is how you say you handle the ones you’re aware of. There is a very simple fix- don’t claim you prioritize safety if you’re going to prioritize something else. This isn’t all that different from cars who have to use very careful wording in marketing their safety claims, and it’s why they have stuff like the star rating system.
It’s broad, but not always, because you can’t twist everything that’s third party into a first party claim.
Same tired arguments
I see we’re still going on about the same strawmen I debunked on the last one (and even got a “most insightful” shoutout). I’m going to try not to repeat all that here, but we’ve gotta dive in again, apparently.
There are a few core problems with Mike’s arguments:
To start:
It’s not a “magic formula”. Section 230 prevents lawsuits on the basis of restricting specific content, prevents lawsuits on the basis of how content is treated with regard to other content, and prevents lawsuits on the basis that platforms are publishers. That’s it.
While framing arguments in terms that are most advantageous to your client is the literal whole basis of adversarial law, and a smart lawyer would certainly try to frame their clearly-violating Section 230 lawsuit in terms of design choices, any judge worth the name–almost certainly including the justices of the Massachusetts Supreme Judicial Court–would look at a lawsuit on the basis of, “I’m suing about the design choices that elevated that specific third-party content over others,” and say, “No, that argument runs into Section 230, your lawsuit is done.” Judges deal with this all the time; it’s literally most of their job.
And, it turns out, that different things are different, and reframing an argument doesn’t actually change the underlying facts or law.
Let’s use a hyperbolic example. Let’s say Tesla started displaying tweets in Teslas. Let’s say that Tesla makes a design decision to project those tweets onto the windshield. Projecting onto the windshield is a technology that really exists, even if it’s not quite cheap and ready enough to be in consumer cars yet. But, you could imagine how that would be useful to have a windshield HUD with navigation on it, for instance.
But we’re talking about Tesla, so it’s tweets. And we’re talking about Elon Musk, the guy who famously demanded all his automaking robots be painted the wrong color, contributing to many workplace injuries at his factories that he’s frequently trying to cover up. Which means, for the purpose of this example, the tweets are full windshield, high opacity. Predictably, this causes a lot of car accidents, before a reasonable person rolls back that functionality.
Mike would have you believe that Tesla should have a perfect Section 230-shaped shield against lawsuits from these car crashes because the content being displayed was third party content, and the decision to display the tweets on a Tesla windshield is therefore an editorial decision, and therefore a lawsuit can’t be made against Tesla for that editorial decision regarding third party content.
Now, there may be some quibbling about Twitter vs. Tesla, which would be responsible under these rulings, blah blah blah, so let’s cut that out so there’s no confusion: Tesla creates its own Tesla social media system, for Tesla drivers, and it only displays its “shocks” on Tesla windshields. Tesla is the platform, directly displaying third-party user content onto the windshield of Teslas, and causing car crashes.
Do I think Mike would actually say this? No. But that is, functionally, the argument he’s making. Mike’s saying that no design decision, no matter how ruinous or terrible, can result in a lawsuit against the designing company, if that design decision is one that relates at all to the display of third party content, because of Section 230.
Mike, I would actually love to know what you think about this scenario, and how you think this scenario differs–from a Section 230 perspective–from infinite scroll or autoplay. Not on the merits of the harm any of those cause; but from a “design decisions for the display of non-specific content with regard to Section 230” perspective.
After all, if all the “shocks” are full-screen images of clear paint drying, then it doesn’t matter that they cover the whole windshield, right?
Moving on:
Yeah, man, if you lose your appeal then you lose your appeal. What is the actual objection, here? The court heard the complaint, determined that Section 230 did not apply, and kicked it back down to the lower court for litigation. Meta didn’t “supposedly have immunity from suit”. The court specifically ruled that they didn’t. The right to have an early appeal is not the right to have the court agree with your appeal. Saying otherwise is silly.
Section 230 means that companies don’t have to defend against Section 230 litigation. If the litigation doesn’t fall under Section 230, they’re going to have to defend against it. This is just obvious.
This is still a silly strawman; see previous comment for obvious rebuttal. There’s no “legal fiction”, here. Different things are, in fact, different.
This is a misrepresentation of the ruling. Once again, Section 230 is about presentation of content with regard to that content. Design elements without regard to content are not within the scope of Section 230. Infinite scroll, autoplay, notification, etc. are content neutral. Any content can be infinitely scrolled, autoplayed, notified about, etc..
In these lawsuits, no one cares about the specific content, and no one is suing because of any specific content or class of content. That is all Section 230 cares about. Someone could try to sue against the evening news on the basis that it has a top of show and bottom of show, which would get thrown out as meritless because there’s no cognizable harm from “the existence of temporal time, and the news follows the laws of physics”. But, it wouldn’t get thrown out on the basis of Section 230 if the lawsuit wasn’t about any content.
As soon as someone tries to sue because, “This content was top of show, not bottom of show,” they would run into Section 230, because now we’re talking about content placement not design.
No, ranking content is quite specifically about content placement, and making moderation decisions to promote or restrict content. Section 230 applies.
I think you’re right; this is a design choice, and Section 230 doesn’t apply. But so? There’s no cognizable harm from “sorting with time”, so no plaintiff could survive a motion to dismiss for “newest first” sorting in a forum.
Yeah, that’s a non-Section 230 design choice. But, Mike, under what cognizable harm could someone be sued because the comments are threaded? None? And no plaintiff could survive a motion to dismiss?
What are you actually worried about, here?
So, the funny thing about Section 230 is that it’s actually very narrow. It states platforms aren’t publishers/speakers, and then it says:
It doesn’t actually say that all lawsuits regarding content decisions are meritless, only that companies aren’t liable for restricting “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable” content. For example, if we found out that Roblox was actively promoting “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable” content to children, a plain reading of the law does not shield them from litigation.
Honestly, a plain reading of the law does not give recommendation algorithms in general protection, except in kind of a reverse way. The companies can argue that a purpose of the recommendation algorithms is to “restrict access to… etc.,” even though what everyone actually sees is what gets promoted, not what gets buried. This provides a pathway to argue that “search engine rankings”–for example–don’t fall under Section 230, but I doubt any judge would go along with that reading; people don’t see the buried content because it’s buried, that’s the restriction of objectionable content right there.
The text of the law, I believe but have not verified, has been expanded by courts over the years to essentially say, “Lawsuits targeting platforms for content-related placement and decisions are non-actionable.”
But, even under the strictest and narrowest reading of the actual text of the law, spam filters fit the bill, and absolutely in every circumstance are a Section 230 moderation decision. They are literally restricting access to objectionable material, what are you even talking about?
However, let’s say that courts really go far and say that recommendation algorithms are, all on their own, design decisions.
What is the harm, without mentioning any specific content, of, for example, PageRank? I understand some people could be upset that they’re not at the top of Google, but as soon as you tell a judge, “My content isn’t at the top,” you aren’t talking about the general design or algorithm, but the placement of content. Under what possible situation could Google’s PageRank, without reference to specific content, cause any harm to anyone?
“But someone could sue…” yeah, someone could sue Techdirt, right now, for defamation because of this article. But, that’s what we call a meritless lawsuit. People can sue for anything. Before and after these rulings, what someone could sue for has not changed, because people can file lawsuits for literally any reason, no matter how meritless or detached from reality.
So all these hypotheticals about what people “can sue” for are just fearmongering nonsense. Someone “could sue” for “newest first” before these rulings, and they “can sue” for “newest first” after these rulings. Their ability to successfully sue based on “newest first” is also the same: 0% likelihood of success. To crib my own analogy from last time: lawn darts were banned, darts were not, and there was no slippery slope toward banning darts just because the death-likely lawn darts were banned, despite them being essentially the same thing in all respects except one.
If there’s no harm, there’s no lawsuit that survives a motion to dismiss. Section 230 is not the only avenue to a successful dismissal. Lawsuits that don’t have any merit also get dismissed.
“Results-oriented decision-making.” Remember that term for later.
I really wish Mike or Goldman explained how either one of them thought including “speaker” in the analysis would have magically turned design decisions into content decisions. This is a nothingburger complaint.
This is just true? Why should they extrapolate further? If the underlying facts and claims at issue are not Section 230, why would the public nuisance claim be any different? What more do you need them to explain? Should they just copy and paste the previous reasoning into place for you?
The picture for Section 230 is the same as it ever was: content moderation decisions are not legally actionable, and platforms are not publishers or speakers. That’s it. None of these lawsuits are about content, whether or not all the content is paint drying.
These weren’t editorial decisions about content. They were technical design decisions made without regard to content, on consultation with psychologists with the specific intention of making the apps as “addictive” as possible (Meta’s employees’ word)–as confessed in internal documents. Just like splashing a tweet across the windshield of a driving Tesla isn’t an editorial decision about content.
Different things, it turns out, are different. And it’s not, it turns out, all that difficult to tell the difference between some things. I’m sure there are blurry lines to be found in social media design and content placement, but I haven’t seen one yet.
The only reason smaller companies “know” they’ll get hit with meritless lawsuits is because the reporting has been hyperbolic and unrealistic. The “heckler’s veto” will only work if the company folds immediately, instead of getting in front of a judge and filing a motion to dismiss against meritless lawsuits. Which, as it turns out, is the exact same procedural step as filing a Section 230 motion to dismiss.
Speaking of meritless arguments. Let’s walk through this. How is a Republican AG going to claim hosting LGBTQ+ content is a bad and legally actionable design decision without referencing the content they’re mad about? Please, please think for, like, two seconds about the arguments you’re making.
Where’s that goose meme when you need it? What harm, Mike? WHAT HARM? You can’t file a lawsuit without some cause of harm! “They can claim–” I’m going to stop you right there. If the argument against lawsuits is that people will make frivolous lawsuits, then we have to throw out the entire civil lawsuit system. Anti-SLAPP laws are the solution to frivolous lawsuits, not, “Just don’t allow litigation.”
Section 230 does provide a procedural shortcut to avoid many steps of litigation, but it’s not the only process that does. Section 230 is only one option for a motion to dismiss. And, as extensively discussed by both me and the courts, Section 230 is about content, and decisions about content. If someone files a meritless claim, that lawsuit can be dismissed at the same motion to dismiss stage as Section 230 allows.
There’s a perception that Americans are lawsuit-happy psychopaths that will sue anyone for anything at any time. Many people will point at the multi-million dollar lawsuit against McDonald’s for hot coffee as the prime example. But all of this is wrong.
The average person isn’t actually lawsuit happy, because lawsuits are expensive, and if you file a meritless lawsuit you give a lawyer a bunch of money and then get no money in return–and depending on your state and lawsuit, the defense gets to extract their lawyers’ fees from you as well. There’s not going to be a wave of frivolous lawsuits because that would require a wave of people willing to drop tens of thousands of dollars on a slim hope of not getting wrecked during motion to dismiss, or, if they somehow survived motion to dismiss, hundreds of thousands of dollars on the slim hope of not getting wrecked during litigation. These people? Mostly don’t exist.
Oh, what about plaintiff’s lawyers that work on contingency? Well, think about that for a second: the lawyer’s taking on all the risk. They don’t want to put hundreds of hours into a case that’s going to bomb. There won’t be a wave of contingency lawyers making meritless lawsuits, because any lawyer taking on meritless cases is going to be too poor to be a lawyer in a very short time.
There is going to be a wave of lawsuits against Meta, Google, Twitter, and Tiktok, to be sure. Argue all you want about whether they should be held liable for their addictive designs, but everyone can at least agree that they’ve done everything they possibly can to have addictive designs. The same can’t be said for Mastodon, for example. Every Mastodon server is safe for the same reason darts were safe after lawn darts were banned: there’s no cognizable harm from Mastodon’s design decisions.
And that McDonald’s lawsuit? She should have gotten more. She should have gotten millions of dollars, but I bet she walked away with less than half a million dollars. After skin graphs and two years of disability, and McDonald’s documented history of knowing their coffee was causing serious injuries. She actually only asked for $20k initially–just enough to cover medical bills–and it was McDonald’s that forced a full trial that got them hit with $640k; there was going to be an appeal, but they settled before actually going through with it, and we don’t know for what amount.
These are incredibly reasonable and relevant questions. What constitutes “addictive design”? Without actual “addictive design” legislation/regulation, should companies be held responsible for design elements whose purpose is to promote continued use? Great questions. I just wish that Mike wasn’t hiding these questions behind a bunch of strawmen, unfounded slippery slopes, and false dichotomies. I would much rather be having conversations about these real things than tearing down the bogus arguments Mike keeps putting up.
I think this is the real core of the problem:
As far as I can tell, the court’s whole ruling is “technically defensible as a Section 230 matter.” But, there are plenty of underlying questions about the claims that are potentially dubious. However, that the underlying claims might be dubious is irrelevant to the Section 230 issue. Lawsuits are not big balls that get entirely lumped together, with every aspect of a lawsuit directly relevant to every other aspect, and every ruling directly tied to every single piece of a lawsuit.
Remember that term from earlier? “Results-oriented decision-making.” Mike seems to be engaged in that. Mike seems to be a Section 230 maximalist, and anything that threatens–or appears to threaten–the broadest possible Section 230 protections is attacked with maximum force, regardless of relevancy or nuance.
As an aside, I’ve brought this up a number of times, but I’m suddenly realizing I need to ask: Mike, you know that Section 230 isn’t the only argument that can be made in a motion to dismiss, right? Because you’re talking like Section 230 is the only way to dismiss a meritless lawsuit, and every meritless lawsuit outside of Section 230 must go through the whole trial process, and that’s very much not the case. Courts don’t want meritless lawsuits to get anywhere; it seriously messes with the judges’ work-life balance. They want to eject such things as quickly as possible.
Anyway, back on topic, the Massachusetts Supreme Judicial Court was only ruling on the Section 230 matter. Of course it didn’t bother grappling with “did Meta deceive the public with regard to safety” or “what is device addiction”. They literally couldn’t. That matter was not before the court. Complaining that the court didn’t bother grappling with it is like complaining that I haven’t bothered grappling with the Outlook bugs that happened during the Artemis II mission; they literally wouldn’t let me if I tried. Those matters will be grappled by the trial court during the trial. You know, when they’re supposed to be grappled with. If, after proper litigation occurs, there’s an appeal up to the higher courts on some basis, then that higher court will be able to rule on that basis. But right now? Mike, they’re literally not allowed to.
Re:
First: wow. This is one of the most insightful comments I’ve read here in a while. Thanks for taking the time and effort to write it.
Second: as someone who runs, and has run, all kinds of discussion forums for decades, I’m not in the least bit worried about being sued. I wasn’t worried even before Section 230. I’m not worried because I’m not deliberately doing stupid things — like designing and building an addictive implementation — and because I deal with problems (such as abuse) promptly. That differentiates me from Meta, which set a design goal of addiction, built something they hoped would result in addiction, and was satisfied when it resulted in addiction. And it doesn’t matter whether they addicted people to interesting content or drying paint: they built an addiction mechanism, and I hope they get hammered for it. If that has a side effect of giving other “social media” sites pause: good.
And third, and this wanders off-topic so I’ll keep it short:
“An email provider’s spam filter decides what goes to your inbox — design choice.”
If your email provider’s spam filter depends in any way, shape, or form on the content of presented messages to determine if they’re spam or not, it’s a truly shitty spam filter. “Relying on information provided to you by your adversary” was a dumb move when Sun Tzu was writing; it’s still a dumb move.
Re: Re:
Your web forum contains content, therefore, it is addicting because people might read it and want to read more of it.
Your web forum allows people to register and write comments. That makes your web forum addicting because it incentivizes the user to keep using it.
Your web forum allows people to send private messages to each other. Therefore, it is addicting because people might want to send more and more messages.
Your web forum has e-mail notifications. Therefore, it is addicting because it is drawing users in from their respective inboxes.
Your web forum may also have features that highlight popular posts (such as popularity icons, view counts, etc.), meaning it is addicting by design because users are being nudged towards specific kinds of addicting content.
When you get sued in this scenario, you are going to flip out at the absurdity of it all. The litigants are not going to give a damn because ruining your life is the goal to make for a better society in their minds. Nuance and reasoning will mean nothing to them. They took down Meta and several other major sites, you happen to be next in line based on overall popularity. Don’t worry, because you cheered all of this on because it meant, in your mind, hurting Meta regardless of the consequences.
Re: Re: Re:
They did not take down those major sites. They won the lawsuit (for now), but the sites they targeted and the companies that own them are very much still around.
Re: Re: Re: Speaking of strawmen
Nothing you just said is likely, or even realistic in any way.
Watch, I can make stuff up, too!
The only companies ever sued under this precedent were worth billions of dollars.
The only companies ever sued under this precedent had documented intentions–both internal and external–to explicitly addict users.
The only companies ever sued under this precedent were run by psychopaths responsible for–literally!–facilitating genocide.
I think my predictions are more likely.
And! I say this as someone whose company is fighting a meritless lawsuit this very moment. Because if someone’s going to file a meritless lawsuit, it turns out it doesn’t matter what the law or precedent is. They’re going to file that meritless lawsuit. The merit is literally not the point.
But, “Basic web functionality is, absent any additional evidence or design, lawsuit-actionable addiction”? That’s not a real threat, and you bloody well know it.
Re: Re: Re:2
Mike’s predictions of bad things happening when Section 230’s protections have been chipped away at carry the weight of being proven accurate.
Look at SESTA-FOSTA.
Re:
Thank you for posting this. I appreciate the segment that specifically takes on this whole angle of the issue:
This perception is a theme that runs through far too many of Mike’s articles on tech law and various lawsuits. His writing at times feels outdated and stuck in the late-90s to mid-2000s assumptions about people and society, back when stuff like South Park and George Carlin were king.
Re: Re:
You spend 30 years writing about a flood of bullshit vexatious lawsuits, and… yeah… well, you kinda expect there to be more bullshit, vexatious lawsuits. I lived through the years of copyright, patent, and ADA trolls. So, I think I have a basis for claiming that we’re very likely to see more such shakedowns.
Those all are still happening. Not from the 90s.
Re:
As someone who covers stuff like anti-SLAPP, he’s aware. It’s also been pointed out more than once in the comments. It’s a rhetorical choice.
Your example with Tesla and tweets are bad because you are intentionally mixing 2 different tasks that has no relation to each other. Most states (and countries) already have bans on things like that (distracted while driving laws). But if you want to compare operating something that can kill other people if they get distracted with someone doomscrolling, go ahead, it just makes your example a bit ludicrous and all reasoning based on that flawed.
Re:
I think you’re kind of missing the point of the example. It’s just using a hypothetical to establish a harm that isn’t tied to the specific content being shown. It’s a little contrived, but all it is at it’s core is a hypothetical where there’s some harm, without having to get bogged down in the details of harm (as there would be for e.g. addiction).
Nothing in the argument is based upon it being 2 mixed tasks.You can replace it by any other generic example, and nothing changes.
That said:
230 would preempt any state civil penalties towards Tesla. Tesla wouldn’t be liable, except criminally.
Re: Re:
I can make up shitty contrived examples too that isn’t tied to the specific content being shown: Every LEO who uses weapons must have smartglasses that show their department’s environmental policy every time they try to use their guns.
A little contrived? No, it’s all contrived.
I said different tasks. The context is reading shit on social media, not driving and getting forced fed shit from social media.
Tell me, what kind of person points at someone saying “They believe this is right!” while using a fucking hypothetical and contrived scenario as the argument why that is? If you missed it, he is implying that Mike is just fine with people being run over by drivers busily reading tweets because displaying said tweets in a car are now suddenly elevated to editorial decisions. Heck, making the windshield opaque to the display the tweets with better contrast must of course also be an editorial decision, right?
Btw, when your phone display a tweet or similar, was that an editorial decision by the phone manufacturer or the creator of the application you use? And if your phone explodes in your hand because of flaw triggered by the contents displayed, the phone manufacturer are of course protected under 230, right? Because the argument was: Displaying tweets are editorial decisions now and those are protected.
In the real world, hypothetically contrived design and functional choices made by hardware manufacturers have fuck-all to do with actual editorial decisions and 3rd party content.
Re: Re: Re: I dunno man...
It really seems like you agree with my point, honestly.
Different things are different. Design decisions aren’t editorial decisions.
I think we’re on the same page. 👍
Re: Re: Re:2
Not really, because your point is flawed. You conflated physical design choices that directly affect unrelated 3rd parties in harmful ways with how content is presented to a user, or in simple terms, you equated physical form and function with web content organized in a certain way.
They are and they aren’t depending on the context. How you choose to present content, like a a design of a web site, is part of editorial decisions. How you choose to design a machine or device isn’t, because how a device functions isn’t content per se unless it is specifically designed that way so the device itself is part of the content – like some types of art.
Nobody will claim that a design of a TV, for example is an editorial decisions because the TV itself isn’t content, it’s used to show content, just like a Tesla showing Tweets in stupid and illegal ways.
Not really.
Re: Re: Re:3 Physical vs. digital is a mirage
You’re really hung up on “physical vs. digital”, as if that’s a meaningful distinction. Yes, the physicality of my proposed terrible designs highlighted the ridiculousness of treating design elements as if they were “editorial decisions”.
That was, in fact, the point. Good on you for somehow continuing to miss it.
But that doesn’t mean that digital design decisions are somehow editorial decisions.
For instance, I can tell you’re clearly not a web developer, because anyone working in that space would point out that anything mocked up with “lorem ipsum dolor sit amet” is categorically not an “editorial decision” by any stretch of the imagination.
Re: Re: Re:
I mean, yeah, you can, but why would you? There’s an actual point to their example, it’s not contrived for the sake of being contrived. You’re not even attempting to make a point and add to the conversation, you’re just flipping the table at that point.
The point of the shitty contrived example is to get at the core underlying point, without getting bogged down in irrelevant side tangents. It does that job perfectly fine, and there’s no point getting hung up on it unless you just don’t want to actually address the underlying point. A good less contrived example would of course be better, but those are harder to think up, especially with people trying to nitpick. As long as it cuts to the point, it’s fine and doing it’s job.
I know you did, and I explained why that does not actually matter. You’re nitpicking an irrelevant detail instead of actually engaging with the underlying point. It’d be one thing if it invalidated the argument, but it doesn’t.
No, he’s not. He explicitly says what he’s conveying with the example, and also Do I think Mike would actually say this? No.. He’s explicit that the point he’s making is that there is a distinction between design and editorial choices.
It’s almost like they picked the contrived example precisely to avoid getting bogged down in that tangent.
That design choices can be different from editorial decisions is literally the point they were making, yes. You can tell, because they explicitly said that was the point. It being a contrived hypothetical doesn’t affect that point.
Re: Re: Re:2
How hard is it to understand that poor design choices of physical devices isn’t editorial decisions? Conflating such choices with how content is organized and shown, show a distinct lack of understanding that this isn’t an apples to apples comparison, it’s an apple to peeler comparison.
Re: Re: Re:3 This is just funny, now
Rocky, honey, I need you to understand something here:
Everyone else gets that “poor design choices of physical devices isn’t editorial decisions”. That is, literally, the point of the examples. You’re the one who isn’t getting what’s going on.
Re: Re: Re:4
You know, you could just admit your pretzel-logic attempt at analogy is stupid and leave the discussion to people with far more comprehension than you.
Re: Re: Re:5
Based on the way you type and your preferred ad-hominems, it looks like Mike Masnick signed out to leave a sock puppet comment.
Re: Re: Re:6
I have no problem putting my name to my comments. No idea who posted that one above.
Re: Re: Re:7
Their bizarre accusation (likely projection) does nicely underscore the level of delusion and incapacity for rational thinking that it takes to be on the anti-230 side.
Re: Re: Re:5 Nope
That you’re trying to call it “pretzel logic” for an analogy that is merely “what if they did this obviously dangerous design?” tells me I made the perfect analogy, actually, because you’re resorting to laughable ad hominem attacks. Nothing could more clearly demonstrate that you don’t actually have a rebuttal.
I can get the law fixed
Techdirt vs Truth Social because scrolling.