Litigation on a certain scale can stop being about righting a wrong and, rather, become a revenue driver. That is the most useful lens for understanding the $1.4 trillion that a coalition of states is demanding from Meta in a youth-safety trial set to begin next month, a sum that approaches the entire value of the company. To reach that number, state attorneys general have borrowed the standard trial-lawyer playbook and built a theory of liability engineered to be as large as possible. The motive here looks political, and the trial-lawyer playbook is simply the tool. The constitutional damage would be the same either way, and it would fall on American free expression.
Strip away the headline figure, and the real danger becomes clear: to reach that number, the states have to convince a court that ordinary and protected online speech is something the government can fine into oblivion. This case is not fundamentally about a dollar figure. It is about whether the government can fine constitutionally protected speech into silence.
What the States Are Actually Asking a Court to Punish
Look past the trillion-dollar demand and at what the states want a court to penalize: the editorial choices that determine what people see and when they see it. But decisions about how to rank, recommend, and arrange content are editorial judgments, and editorial judgment is protected expression under the First Amendment.
In Moody v. NetChoice, the Supreme Court recognized that when a platform curates and arranges what users see, it is exercising the same First Amendment-protected editorial discretion as a newspaper deciding what to print or a bookstore deciding what to stock. The features the states blame for “time spent,” such as algorithms and feed design, are the machinery of that protected expression.
A Damages Theory That Creates Censorship
This is the part every American who relies on an online platform should watch closely: when the government cannot restrict speech directly, the next-best tool is to make hosting and curating that speech ruinously expensive. A $1.4 trillion verdict would not make a single child safer. It would mean that Americans’ access to online speech is being litigated into extinction. It would invite the next state to do the same to any business running an online platform, over any editorial choice that a complaint can reframe as a “defect.”
This is exactly the maneuver NetChoice has challenged in court again and again: governments invoking “safety” to sidestep the First Amendment. Courts keep rejecting it because the Constitution has no “safety” exception, and it certainly has no “large enough dollar figure” exception.
The Number Gives the Game Away
The demand is only enormous because the same people get counted again and again. Even the judge has questioned how the states arrived at their figure, calling their calculations “not reasonable” and asking how they were “at all rational.”
The math is padded. The court compared it to a “Russian doll,” because a single teenager is counted many times over. That teen shows up in several different penalty charts, and the company is then fined again and again for that same teen every month they used the app. And for younger users, the states count accounts instead of people, so one child with a couple of logins becomes several separate violations. Stack those layers on top of each other, and any number starts to look big, whether or not anyone was actually harmed.
A number built that way is a pressure tactic. And the costs of that tactic don’t stay with one company. A judgment approaching a platform’s entire value threatens the small businesses on Main Street that rely on these services to reach customers, the retirement accounts and pensions invested in them, and the free tools hundreds of millions of Americans use to speak and connect every day.
There is a Constitutional Way to Keep Kids Safe
Concerns about young people online are real, and they deserve solutions that actually work, like the Department of Homeland Security’s Know2Protect campaign. American families don’t need a liability theory that lets the government punish protected speech under the banner of safety. That is why NetChoice built the Digital Safety Shield for America: a framework that funds law enforcement to go after predators, strengthens the laws that punish real online crimes, and equips parents and kids with better tools, without shredding constitutional protections or setting a precedent that any state can turn against protected speech.
The choice now in front of the courts is whether they allow the government to set a $1.4 trillion price on protected speech and prey on the First Amendment rights of every American who uses these platforms. No child is protected by that, and every American who speaks online has something to lose. Courts should refuse to let the price of free expression be set at $1.4 trillion.
Image via Unsplash.