Over the past year, courts and juries around the country have handed down some of the largest decisions yet in a fast-growing wave of lawsuits against social media companies. A New Mexico court recently ordered Meta to pay a judgment approaching a billion dollars and to run its services under court supervision for five years. Thousands of similar suits are pending nationwide, brought by state attorneys general, school districts, and individual plaintiffs. While most coverage treats these as cases about corporate accountability, their more consequential impact is on the free speech rights of Americans, whose access to lawful online content stands to be restricted not by legislation but by court rulings that regulate how speech flows online.
These Product Cases Are Really Speech Cases
Most recent efforts to regulate online speech have taken place in Congress and state legislatures. States have passed laws requiring age verification, parental consent, curfews on app use, content restrictions, and warning labels, and NetChoice has challenged many of them under the First Amendment. Those fights continue, but a new front has opened in the courts, where litigants pursue the same goals through lawsuits against media companies.
The lawyers driving these cases are careful not to make them look like speech cases. In their filings and in public, they insist the dispute is about product design, and the line that “it’s not about content, it’s about conduct” has become a favorite of social media’s critics. That framing does not survive the remedies they request, which would regulate how Americans reach lawful information online in broad new ways.
For years NetChoice has argued the same point in court: a website’s decisions about whether and how to display content are its own protected expression, in the same way a newspaper’s choices about what to run and where to place it belong to the paper. The Supreme Court accepted that view in Moody v. NetChoice, and NetChoice has made the same argument in the current wave of suits.
Many of these rulings have paid lip service to that reality. In New Mexico, Judge Bryan Biedscheid’s order declined to regulate Facebook and Instagram’s algorithms and said plainly that doing so would likely violate the First Amendment. But it then capped the hours a minor may spend on the service each month, blocked notifications during set windows, and required the company to show a state-approved message to every adult user in New Mexico at least once a month. Each of these requirements works as a regulation on access to lawful speech. The access limits force someone looking for lawful information on social media to clear government obstacles they would not face when finding the same information elsewhere. The government-mandated “warnings” about the supposed dangers of social media discourage users from seeking out lawful content there, and no comparable warning is required on the pages of Teen Vogue or TMZ.
The Orders Reach Adults and Override Parents
These restrictions reach all users, minors and adults alike. The New Mexico order requires Meta to show every adult in the state that monthly message, written by the state attorney general. Forcing a private communications service to disseminate a government-approved message to millions of adults is compelled speech. When Colorado required social media services to display state-mandated warnings by statute, a federal court enjoined the law as likely unconstitutional compelled speech.
Limits on access to lawful information raise the same problem. The First Amendment protects the freedom to read and receive information. When an order sets a ceiling on how much lawful content a person may see, or fixes the hours during which a speaker may tell someone that content is available, it is regulating access to lawful speech.
The debate over tech use by minors is really a debate over who decides how a family parents. Many of these remedies put a government’s judgment in the place of a parent’s. When imposed by court order, a cap on teenagers’ monthly hours spent chatting on social media, watching Netflix, or playing Wordle is still a one-size-fits-all mandate that the government is forcing on families. Every single family in the state is affected, no matter what an individual parent decides is best for their child. A parent who reaches a different conclusion about their own child has lost the ability to parent as they see fit.
Families are not short on tools. Device settings, app store controls, and app-level supervision features are already ubiquitous, provided voluntarily by the industry, similar to how legacy media companies created movie and video game ratings parents have used for years. With these existing controls, parents can block apps, set time limits, approve downloads, and monitor activity. The evidence shows parents need help navigating that abundance. A lawsuit and following settlement do not address that problem, as they do not give parents resources to make better-informed decisions for their family.
Public opinion on this question is not close. Polling from FIRE finds that 69% of Americans trust parents to oversee their children’s social media, far more than those who trust the federal government or the services themselves. Yet these lawsuits, and the rulings that follow them, ignore that preference.
The people who make and receive lawful speech should decide what they say and see, and parents should decide how their own children use these services. NetChoice’s Digital Safety Shield for America sets out an approach to youth safety that keeps those decisions where they belong while giving families better tools to protect their kids.
Image via Unsplash.