Thread by @jess_miers

[CORRECTED: Same thread as yesterday w/first tweet edited. This is not the school district cases]

🚨 CA Court rejects #Section230 and 1A defenses in numerous social media addiction cases. Plaintiffs' negligence claims will proceed.🧵

The CA case involves numerous complaints by minors alleging addiction claims. The issues raised here are similar if not identical to the issues raised in the federal school district MDL (ongoing). Same analysis follows.

Order here: acrobat.adobe.com/id/urn:aaid:sc…

Social media companies are not products for the purposes of products liability law. Court instead proceeds on the negligence claims, similar to the ones arising out of Snapchat's speed filter in Lemmon v. Snap.

The Court focuses on negligence, first comparing the duty of care owed to pedestrians by electric scooter companies to the duties owed by online publishers.

Except, the provisioning of electric scooters != publishing third party speech.

Court also concludes that the harms complained of by the Plaintiffs are plausibly linked to Defendants' algorithmic designs.

Putting aside though the array of external factors at play in any individual minors' life that predispose them to said harms.

Court also finds reason to attach moral blame to the Defendant social media services, noting that the services could have opted for child-safety measures such as mandatory age verification;

...a measure that another California Court just recently deemed unlikely to comport w/1A

The Court distinguishes liability for violent television programming from the algorithms used to curate and display third party content online, suggesting 1A shouldn't bar the latter.

The distinction is arbitrary as both regard the delivery of content programming.

Court accepts the conduct versus content trope, disregarding that the majority, if not all, of the alleged harms derive entirely from the kind of content displayed to users.

Yet, content curation is acceptable for other mediums? (disregarding Netflix also uses algo curation...)

The Court also accepts that Plaintiffs' proximate causation theory where Plaintiff alleges harms derived from both the usage of TikTok and Instagram, disregarding that both apps are meaningfully different in design and serve distinct purposes and content.

It's beyond me how courts are to divide / assign liability for each alleged harm that could be attributed to numerous different algo designs and content across many different online publishers in addition to other external health + environmental factors at play in a users' life.

As for #Section230, the Court relies on Lemmon, concluding that the ways in which social media sites curate and display content, and provide tools for third parties to publish content, is first party behavior having nothing to do with the role of being a publisher / speaker.

In reaching that conclusion, the Court uses the following examples, all of which essentially regard the facilitation of third party speech: Tiktok's auto-scroll feature, Snapchat's snap-streaks and filters, push notifications, and the lack of age vetting at account registration.

In cleaving these measures from 230, the Court suggests that none have to do with moderating and publishing third-party content.

Yet in practice, each is central to the facilitation of third-party content. Any harms derive entirely from the availability of that content pool.

The Court also relies on an exception for online publishers that meaningfully manipulate third-party content (e.g. changing the underlying meaning, removing warning labels).

The analogy is imprecise. Online services deliver and display content w/o altering the content itself.

The Court adds Section 230(e)(3) permits state negligence claims such as the ones alleged here, within the spirit of Congress' intent.

The conclusion misconstrues the exception and runs directly opposite of Congress' intent to provide a national standard for UGC services.

Doubling down, the Court adds that 230 does not apply to the services' own operations, separating the algorithmic curation of content into its own special conduct category.

But the operations are central to 230. The services' conduct towards UGC is in fact the entire point...

Cubby and Stratton Oakmont, the case law dilemma 230 was explicitly enacted to resolve, was entirely about the services' "operations" as applied to the third-party speech they host: Hands off curation vs. family friendly moderation.

It has always been about publishing conduct.

The Court also attempts to distinguish Dyroff, noting a difference between harms derived from the content itself versus the publication conduct.

Yet, claims regarding eating disorders can't logically derive from publication measures absent the triggering third party content...

Again the Court buys into an arbitrary decoupling of the underlying content and the publication conduct without more.

The Court also rejects Prager, inviting yet another arbitrary distinction within the publishing algorithm itself (i.e. rote algorithmic recommendations vs. personalized algorithmic recommendations).

In practice, such technological distinction is impractical and illogical.

Turning to 1A, the Court pushes the Gonzalez theory that content curation algorithms are more akin to physical book material than the content found in the book itself.

The Court also fails to consider that algorithmic curation and publication are 'expressive activities.'

Again the Court pushes the nonsensical theory that addiction to social media can derive from the publication measures alone absent third party content.

At the same time, the Court seems to disregard the same algorithmic curation components at play for Netflix...

The Court also misconstrues the @NetChoice line of cases, suggesting that content moderation only encompasses the removal of content / users.

Of course, the conclusion disregards the inherent moderation function of curation algorithms designed to prioritize high quality content.

Lastly, the Court rejects the 1A considerations under Sullivan and Tornillo for the sole reason that publication measures, like auto-scroll, are unlike the traditional publication functions employed by newspapers and broadcasters; an unsophisticated SCOTUS-rejected argument.

The government is explicitly barred from encumbering adult access to legal speech.

Yet, that is the entire thrust of these social media addiction suits which have apparently duped this court.

Stay tuned for the inevitable appeal.

Also, let's be clear, the only "reasonable" alternative here that both the Court and Plaintiffs suggest is mandatory age verification for all users across all platforms for any and all content.

It's always about increased surveillance and censorship.

@threadreaderapp unroll