The Law & Economics of Online Speech Platforms and ‘Unfair’ Product Design
There has been an evolving battle in recent years over how to protect minors on online platforms in a way that would be consistent with the principles of free speech. Given the strictures of both the First Amendment and Section 230 of the Communications Decency Act, the government has very limited ability to restrict either the presentation of or access to online speech. For instance, age-verification laws for protected speech have routinely been permanently enjoined as unconstitutional, or temporarily enjoined as likely to be so.
Nonetheless, states and other plaintiffs have gotten creative, using tort law and consumer-protection law to argue that they aren’t actually trying to regulate speech, but only conduct. The Commonwealth of Massachusetts continued this trend with a complaint against Meta Platforms targeting various harms alleged to arise from minors’ use of the Instagram platform.
In its complaint, the commonwealth alleges that Meta engaged in unfair trade practices by employing addictive product-design features on Instagram (count one of the complaint) and failing to sufficiently verify ages in order to exclude users who were under 13 (count three). An October 2024 trial court decision denying Meta’s motion to dismiss declined to engage in any substantial First Amendment analysis, finding the commonwealth’s claims were “principally based on conduct and product design, not expressive content.”
In an amicus brief that Geoffrey Manne, Kristian Stout, and I filed today with the Massachusetts Supreme Court, we argue that the trial court’s opinion should be vacated and that count one and count three should be dismissed under the First Amendment. In this post, I will offer some detail on the law & economics of protecting minors on speech platforms, and then preview the legal arguments we made in our brief.