Massachusetts high court filters Instagram for addictive features

BOSTON (CN) — Instagram should have to pay damages and change its practices because it’s a “public nuisance” that harms children’s mental health, the Massachusetts attorney general’s office told the state’s highest court Friday, and the justices seemed sympathetic in a complex, lengthy and rapid-fire oral argument.

Numerous similar cases have been filed around the country, but this is the first to reach a state’s highest court, according to Alexandra Lahav, a professor at Cornell Law School who has written more than 30 articles on mass tort litigation and is frequently cited in court decisions.

As a result, the Massachusetts court’s eventual ruling could be highly influential.

Instagram — owned by Meta Platforms, the parent company of Facebook — addicts children through design features such as frequent notifications, fast-expiring content, infinite scrolls and autoplay features, producing depression, anxiety and altered brain structures that have created a statewide mental health crisis, the state argued in its complaint.

The state sued under laws prohibiting unfair and deceptive trade practices and public nuisances.

Instagram says the suit is barred by Section 230 of the federal Communications Decency Act, which generally protects web companies from being sued for publishing third-party content. A lower court disagreed, and Instagram took an interlocutory appeal.

The state’s lawyer, David Kravitz, told the justices that he wasn’t suing for the third-party content — “We’re not trying to hold Meta liable for videos of dogs jumping into piles of leaves” — but for its design features, a distinction that drew some pushback from Justice Scott Kafker.

“D.H. Lawrence writes ‘Lady Chatterley’s Lover,’” Kafker said. “The publisher puts a sexy cover on it and makes people want to read it. Isn’t that publishing? I’m having trouble seeing why they’re not just accentuating the content and getting you all excited. That’s what a publisher does.”

Kravitz said that might be true, but Section 230 applies only to the third-party content, not the accentuating, and he got a sympathetic response from Justice Gabrielle Wolohojian.

“I think of it as more analogous to advertising,” she said. “A magazine publisher runs ads on TV or sends mail and says ‘Subscribe; this is the kind of thing that’s in it.’ That would not be thought of as a publishing act, but advertising. These notifications seem to me much closer to that.”

Instagram’s lawyer, Mark Mosier of Covington & Burling in Washington, D.C., countered that “what draws people in is the third-party information. If you’re told that your teacher published a video of a lecture, you might not be inclined to open it. If it says ‘Taylor Swift liked your post,’ you might.”

“But it’s the same with advertising,” Wolohojian objected. “The decision to send notifications is conduct, not a publishing activity.”

Justice Dalila Wendlandt seemed to agree. “Third parties aren’t creating the content that you’re pushing to the kids,” she said. “Frequent notifications are a structure, playing on FOMO — fear of missing out — that teenagers generally have.”

And even Kafker conceded that the notifications were independent of the content. “You don’t care what the information is,” he told Mosier. “It doesn’t matter if it’s Thomas Paine’s ‘Common Sense’ or nonsense.”

Mosier retreated a bit and said that even if design features such as frequent notifications were outside the scope of Section 230, they were truthful statements protected by the First Amendment. But Wendlandt wasn’t sure that even that was true.

“The commonwealth isn’t saying that they’re inaccurate; it’s saying that they’re incessant,” she noted. “Does the First Amendment protect someone who’s serially calling me at home, phone call after phone call every five seconds, saying ‘Bobby likes me’?”

Kafker was wary of getting into the First Amendment and suggested the court could hold that Section 230 didn’t bar the suit and let the lower court rule on other issues. “You’re asking us to decide complex constitutional questions prematurely and perhaps unnecessarily," he told Mosier.

The Massachusetts case is part of a larger trend as society attempts to cope with the explosion of teen phone use, including school districts banning phones or locking them up during the school day. The first “public nuisance” lawsuit was filed in 2023 by a Seattle school district claiming that social media outlets deliberately addicted children and served up inappropriate content encouraging anxiety, depression, eating disorders, cyberbullying and self-harm.

This led to “drastic increases in suicides, attempted suicides and mental health-related ER visits” by schoolchildren as well as fights, classroom disruptions, absenteeism and tardiness, the district claimed in its complaint. Waiting lists for school mental health services had become “astronomical,” it said.

A large number of federal cases followed, which have been consolidated into a multidistrict litigation in Northern California. The judge in that case has ruled that Section 230 bars some but not all of the claims.

The plaintiffs’ consistent strategy in these cases has been to avoid attacking the social media content itself, which is more likely to be protected, and instead to emphasize the algorithms and design features, said Adam Zimmerman, a professor at USC who teaches mass tort law.

The plaintiffs are focusing on the machine instead of the message, he said.

Zimmerman noted that the lawsuits are being brought by both red and blue states, suggesting that social media addiction isn’t a partisan issue.

Even if the Massachusetts high court rules against Instagram, the company is unlikely to settle soon, Lahav predicted.

“The social media companies are risk-seeking and prepared to take these cases to trial,” she said. “From what I’ve seen, they want to litigate and see how they do in front of juries before they’re ready to settle.”

On the other hand, “the damages could be really, really big,” Zimmerman noted, and if there’s evidence that the companies knew about the risks and ignored them, they might not want that information to come out through discovery.

In terms of both public relations and jury verdicts, “a lot depends on what the discovery shows,” Lahav agreed. “If you saw internally that there was a risk and you didn’t mitigate it, you’re in a different position than if there’s nothing to be done.”

Some documents suggesting that social media platforms deliberately prioritize harmful content to children were disclosed by Facebook whistleblower Frances Haugen in 2021.

“This has echoes of tobacco and opioids,” said Theodore Rave, who has taught at Harvard Law School and the University of Texas at Austin. “The defendants were winning until inside information came out that showed that they knew what was happening and hid it.”

An interesting feature of the Massachusetts argument was that the justices who will play an outsized role in deciding the future of social media appeared to have little personal familiarity with it, often asking basic questions about how the sites operate. One repeatedly referred to content being chosen by “logarithms” rather than algorithms.