ICLE Scholar: Product-Liability Verdicts Are Wrong Model for Kids Online Safety
PORTLAND, Ore. (May 13, 2026) — Recent jury verdicts that recast core social media features as defective products offer the wrong model for federal efforts to protect children online, International Center for Law & Economics (ICLE) Senior Scholar of Innovation Policy Ben Sperry said ahead of today’s U.S. Senate Judiciary Subcommittee on Privacy, Technology, and the Law hearing on social-media litigation and federal protections for kids online.
The hearing follows jury verdicts in New Mexico v. Meta and K.G.M. v. Meta, in which state courts allowed plaintiffs to reframe platform features—algorithmic recommendations, infinite scroll, autoplay, push notifications, and ephemeral content—as defective product designs, rather than protected editorial choices. Both verdicts are expected to be appealed. Meanwhile, federal courts have struck down statutory duties of care in two Arkansas laws on First Amendment and void-for-vagueness grounds.
“Protecting children online is a legitimate and important goal, and the subcommittee is right to take it seriously,” said Sperry. “But the verdicts framing today’s hearing are exactly the wrong template for federal action. They reach their results by recasting editorial choices as product defects. That sleight of hand sidesteps both the First Amendment and Section 230. Federal courts reviewing state social media laws have rightly refused to follow that path.”
“The Supreme Court has made clear that the First Amendment protects not only a platform’s decisions about what speech to display, but also how to present it,” Sperry added. “Congress can legislate in this space, but the Constitution requires lawmakers to say clearly what is illegal before punishing how online platforms present speech.”
Sperry warned that vague duties of care—like those proposed in the Kids Online Safety Act—would leave platforms guessing about what the law requires when features are used by billions of people with vastly different sensitivities.
“That uncertainty will push platforms to restrict more user speech, suppress more borderline content, and redesign their services to be blander and less engaging to avoid claims that their features are ‘addictive,’” Sperry said. “As a federal court reviewing a similar Arkansas law put it, businesses of ordinary intelligence cannot reliably determine what compliance demands. That is the textbook definition of a law that chills protected speech.”
“The better path forward is also the more modest one,” Sperry said. “Education, parental controls, default safety settings, and user-empowerment tools are far more likely to survive constitutional scrutiny—and far more likely to actually help kids—than broad liability regimes that ask judges and juries to decide, after the fact, when an app has become ‘too engaging.’”
“Federal legislation that empowers parents, funds research, and gives platforms clear rules of the road will do far more for children than legislation that imports the constitutional flaws of verdicts now on appeal,” Sperry said.
To arrange an interview with Sperry, contact Jim Fellinger at [email protected].
Recent work by Ben Sperry and ICLE on social-media regulation, intermediary liability, the First Amendment and protecting minors online:
- Ben Sperry, “Addicted to Vagueness: Lawmakers Can’t Regulate Social Media by Vibes,” Truth on the Market (May 8, 2026).
- Ben Sperry, “Treating Speech as a Bug, Not a Feature,” Truth on the Market (March 30, 2026).
- Ben Sperry & Sabrina Pekarovic, “Social Media Bans and the Problem of One-Size-Fits-All Policy,” Truth on the Market (March 26, 2026).
- Ben Sperry, Geoffrey A. Manne & Kristian Stout, “ICLE Brief to the Massachusetts Supreme Court in Massachusetts v. Meta” (Nov. 14, 2025).
About ICLE
The International Center for Law & Economics is a nonprofit, nonpartisan research center working with a roster of more than one hundred academic affiliates and research centers from around the globe. ICLE scholars promote the use of law and economics methodologies to inform public policy debates.