ICLE Cited in National Review on First Amendment Protections for Platform Design

National Review cited an amicus brief filed by ICLE in an article analyzing the social media liability trial currently underway in California. The piece highlights ICLE’s argument that platform functionalities, such as infinite scrolling and recommendation algorithms, are forms of expressive activity protected by the First Amendment, rather than mere product design defects.

Read the full piece here.

Likely most importantly, this lawsuit runs headfirst into the freedom of speech guaranteed by the First Amendment. As the International Center for Law & Economics (ICLE) recently made clear in an amicus brief submitted in a similar social media case in Massachusetts, features like infinite scrolling, push notifications, and recommendations are not design defects or simple conduct. Rather, they constitute expressive activity and, as the Supreme Court held in Moody v. NetChoice, protected editorial choices regarding how a platform conveys content. The ICLE brief emphasizes that “how a newspaper presents its content is as much part of its ‘editorial control and judgment’ as the content itself,” arguing that “it is much the same here” for social media platforms.