I am alarmed by the negative influence of smartphones and social media on children. All of us should be.
I am also worried that in our zeal to protect children from those negative influences that we will violate the Constitution and undermine free speech.
And that’s where things get tricky.
Last week, juries in two different states delivered multimillion dollar verdicts against Big Tech. A New Mexico jury handed down a $375 million verdict in a case brought by the state’s attorney general against Meta for enabling child sexual exploitation. The next day, a California jury awarded a young woman a combined $6 million in damages from Meta and YouTube for the allegedly addictive and mentally distressing properties of social media apps, including algorithmic curation and so-called infinite scroll, where the app continually provides you with new content as you scroll down the page.
I know that it’s easy to celebrate those verdicts. I’m a parent of three who’s seen what happens when a teenager becomes a “screenager” and buries his or her head in a smartphone, minute by minute, hour after hour. Looking around my community, I’ve seen the disconnection from the real world and the vulnerability to conspiracy theories and absurdly radical social and political movements.
I’m also a concerned citizen who read Jonathan Haidt’s transformative book, “The Anxious Generation,” and watched with alarm as sex, drugs and rock’n’roll — the concerns of previous generations of parents — have been replaced by the unholy trinity of anxiety, depression and suicidal ideation.
And I’m an angry consumer who has seen internal documents that show that Big Tech, for all of its high-minded rhetoric about making the world a better place and doing no evil, can be just as greedy and grasping as countless other companies in countless other industries.
So, yes, it is a matter of urgent national necessity that we start to pull all of our heads — not just our kids’ — away from our phones and re-engage in the real world, with our neighbors and our communities. We should think creatively about policies and habits that can wean Americans away from their phones.
But not at the expense of the Constitution and our right to free speech.
A social media site isn’t a bottle of alcohol or a cigarette. It’s not delivering a drug. It’s delivering speech. Sometimes that speech is silly and harmless. Sometimes it is toxic and harmful. Sometimes it’s educational or inspiring. But it’s all speech, and in America speech traditionally can only be blocked, censored or regulated in the narrowest of circumstances.
Defamation, true threats, obscenity, child sex abuse material, direct incitements to violence — each of those forms of expression can be banned and punished because they are not encompassed within the “freedom of speech” protected by the Constitution.
Commercial speech — advertisements for prescription drugs or labels for food, for example — can be heavily regulated. But when you move beyond these categories — especially when someone is engaged in speech that has any kind of artistic, political, cultural or religious value — then the most comprehensive protections of the First Amendment start to lock in.
Even the algorithm is a form of constitutionally protected speech. As I’ve explained before, in a 2024 Supreme Court case called Moody v. NetChoice, Justice Elena Kagan wrote for the majority that “expressive activity includes presenting a curated compilation of speech originally created by others.”
The algorithm, Justice Kagan explained, was comparable to the layout of a newspaper, where editors decide which stories to feature prominently, which stories belong on the back pages, and how to make the page attractive and readable so that more people will see the news.
The Los Angeles verdict, despite its smaller amount of damages, is by far the more troublesome. The plaintiff — who started using social media when she was 6 — didn’t claim that she was harmed by unlawful speech. She wasn’t threatened or slandered, for example. But she claimed that social media companies made her addicted to lawful speech, and that her compulsive consumption of this lawful speech caused body dysmorphia and triggered thoughts of self-harm.
That lawsuit is one of thousands of similar suits pending across the nation.
There is no question that the plaintiff in the case had a traumatic childhood, but there was a real dispute about whether social media was the principal cause of that trauma. As The Associated Press reported, for example, the plaintiff testified that her mother had abused her physically and psychologically.
Yet as Mike Masnick reported at Techdirt, an invaluable site that closely covers (among many other things) the fights over free speech online: “The jury was asked whether the companies’ negligence was ‘a substantial factor’ in causing harm. Not the factor. Not the primary factor. A substantial factor.”
It’s not hard to understand the risks to free speech. If a person experiences psychological distress as a result of what he or she sees online, is it now open season on the platforms that deliver that speech because they arrange it and package it in a compelling manner? But the effort to gain (and keep) a person’s attention is a key element of the entire enterprise of free expression.
The trial court in the crucial California case tried to evade the First Amendment by claiming that the cases weren’t about content, but design. Infinite scroll isn’t speech. It’s a means of delivering speech.
Again, Masnick is directly on point: “Here’s a thought experiment: 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. None of these features are remotely harmful unless the content is compelling.
It’s quite possible that these verdicts will be overturned or heavily modified on appeal. But that process can take years. In the meantime, there will almost certainly be many more trials and many more verdicts that will put social media companies under pressure to increase their own censorship and their own controls over free speech online.
In the face of genuine social problems, it’s always tempting to cast off constitutional restraints. We fight this battle over crime all the time. Crime waves invariably lead to calls for crackdowns, but there are constitutional and unconstitutional (much less reasonable and unreasonable) ways of fighting crime.
An increased police presence in high-crime areas is invaluable. Race-based stop-and-frisk violates the Constitution and increases political division and public bitterness. Expanded drug treatment facilities can help address the demand for illegal drugs. Brutal prison conditions might punish convicts, but they violate our constitutional commitments to human dignity.
There are also constitutional and unconstitutional ways of ameliorating the harms of social media. Phone-free schools, for example, represent a content-neutral time, place and manner restriction that allows students to focus on education, their obvious primary obligation during school hours — not to mention that it helps them socialize face-to-face.
We can also hold social media platforms liable for their own speech in the same way that we can hold any other person or company accountable if they engage in slander, harassment, threats or any other expressive activity that fits the classic categories of unlawful expression.
For example, just two years ago, I wrote in defense of a federal appellate court decision holding that TikTok was potentially liable for algorithmically suggesting the so-called blackout challenge to a 10-year-old girl who later tried the challenge (which involves voluntarily choking yourself) and died.
In that case, TikTok’s algorithm proactively suggested the challenge to the young girl. She did not search for it. As I argued at the time, TikTok should be treated in the same way that we’d treat an adult who urged a child to try a potentially fatal activity. But that’s not what the California case was about. In that case, the fundamental argument was that the design caused an addiction, not that specific speech caused direct harm.
And we can’t forget the role of parents and public education. Jury verdicts are a terrible substitute for parental control, and we should not think that parents are helpless. There has been a welcome sea change in parental attitudes and practices toward social media since the invention of the iPhone.
One of my great parenting regrets is naïvely giving my two older kids phones when they were quite young (they’re doing fine and they’re great kids, but it was still a mistake). I did not know what I did not know. My youngest child, however, had a substantially different experience. We learned. We changed. And so has virtually every parent I know.
She didn’t get a phone until she was 16, and she could not take it into her room. Even then we limited access to social media apps. Every year she took a monthlong sabbatical from all electronics at her summer camp. Other parents ask their kids to sign digital contracts regarding phone use, or they block all social media, or they regularly review their kids’ social media accounts.
And now parents have to pay attention to their kids’ exposure to immersive artificial intelligence. For some kids — thousands and thousands of teenagers among them — social media is now less influential in their lives than an A.I. chatbot.
There is hope. We can push back against the most toxic effects of social media in our lives. At the same time, however, we cannot forget — in the words of Frederick Douglass — that “No right was deemed by the fathers of the Government more sacred than the right of speech. It was in their eyes, as in the eyes of all thoughtful men, the great moral renovator of society and government.”
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