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Thursday, July 11, 2024 | Back issues
Courthouse News Service Courthouse News Service

Social media’s harm to kids: The next blockbuster lawsuit?

With the potential for enormous settlements and social change, nascent litigation against the tech giants could soon rival the massive claims over tobacco and opioids.

(CN) — Hundreds of families have already filed individual suits over alleged harm to children from social media, but a new case in Seattle is doing something different. It is the first to be brought by government officials, specifically a public school district, using a “public nuisance” theory. In other industries, the same potent combination has led to billion-dollar settlements.

“There is a chance that this will become very large-scale,” said 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.

“There’s a lot of similarity to opioids,” said Theodore Rave, who has taught at Harvard Law School and the University of Texas at Austin. “It has the potential” to have a similar social impact, he said.

“Public officials can get a lot of bang for their buck for social change,” added Adam Zimmerman, a leading expert on mass-tort law who teaches at Loyola Law School. “If they recreate this model and lots of school districts get involved, it could play out like opioids.”

All three experts cautioned that it is still very early and it’s not clear what will happen. “A lot depends on the next six months,” said Lahav. But the potential for historic industry-changing litigation is there.

Seattle’s school district claims that Facebook, Instagram, Snapchat, YouTube, TikTok and Google deliberately addict children to their platforms and serve up inappropriate content that encourages anxiety, depression, eating disorders, cyberbullying and self-harm.

This has 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 claims.

Waiting lists for school mental health services have become “astronomical,” according to the complaint, and the district has been forced to spend large amounts of money to keep up.

The lawsuit claims this is a “public nuisance,” the same legal theory that was used in government suits against the tobacco industry that led to settlements worth hundreds of billions of dollars as well as major changes to marketing and research practices.

A similar theory was used in government lawsuits against opioid makers that resulted in tens of billions of dollars in settlements, as well as claims brought by 34 states against vape-maker Juul. The Juul claims were settled last year for $438.5 million along with a $1.2 billion settlement in related cases.

Public-nuisance claims have a number of advantages over traditional product-liability suits brought by individuals, including the fact that governmental plaintiffs have far more money and resources. In a public-nuisance suit, there’s no need to prove how an individual person was specifically harmed or how much the harm was due to the product as opposed to other factors, for instance. And Rave said product-liability cases can be harder to win when the harm is emotional rather than physical.

In some ways the social-media lawsuits might even be easier for plaintiffs to win than the earlier mass torts. With opioids, many people became addicted to the drugs while taking them for pain, but much of the harm was caused by using street drugs later as substitutes, which made the cases more difficult, Rave noted. And opioid companies often leaned on something called the “learned intermediary doctrine" to defend themselves, saying that the drugs were prescribed by doctors.

Social-media claims don’t have these problems. “Any intermediary who was sufficiently learned would tell you that using social media was rotting your brain,” Rave quipped.

Another advantage is that the social-media companies are being accused of deliberately targeting children, which “automatically evokes some sympathy,” Rave said. “The most compelling arguments in the tobacco litigation were that some of the industry’s advertising was aimed at children.”

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Lahav noted that, “with Juul there was a lot of anger about the company’s tactics, such as creating a bubble-gum flavor and promoting it in schools. People have concerns about their own children or ones they know.”

A high school student uses a vaping device near a school campus in Cambridge, Mass., on April 11, 2018. Twice as many high school students used nicotine-tinged electronic cigarettes in 2018 compared with the previous year, an unprecedented jump in a large annual survey of teen smoking, drinking and drug use. Findings were released on Dec. 17, 2018. (AP Photo/Steven Senne, File)

Many of the plaintiffs in the Juul litigation were school districts, Zimmerman noted.

One of the problems for the tobacco and opioid plaintiffs was that addiction was widely seen as a matter of personal responsibility. Lahav said that started to change, however, when evidence came to light that the manufacturers were deliberately manipulating people to get them addicted. The social-media plaintiffs are making similar claims, and “if they can do discovery and get documents showing that, there could be a massive pile-on of lawsuits,” she continued.

Some documents suggesting that social-media platforms prioritize harmful content to children were disclosed by Facebook whistleblower Frances Haugen in 2021. “This has echoes of tobacco and opioids,” said Rave, “where the defendants were winning until inside information came out that showed that they knew what was happening and hid it.”

Another factor is that the social-media defendants can’t claim that their products were deliberately misused, a key defense that torpedoed the largely unsuccessful public-nuisance lawsuits against gunmakers.

Citing the gun cases, Deborah Hensler, a professor at Stanford Law School, said that “there have been some successes with public-nuisance theory … but there have also been failures, so suits based on public nuisance are by no means a sure thing.”

The social-media cases do face a number of hurdles. The claims “raise very significant First Amendment issues,” said Robert Rabin, another Stanford law professor. “None of the earlier mass-tort actions faced that particular (and substantial) barrier,” he pointed out in an email (parentheses in original).

And a federal law, section 230 of the Communications Decency Act, generally says that web companies can’t be sued for publishing third-party content. The Seattle schools are trying to avoid this problem by saying that they’re not suing the companies for the content itself but rather for deliberately designing an addictive product that they knew would cause exposure to harm.

The U.S. Supreme Court is expected to rule on the scope of this law later this year in a case by the family of a terrorism victim, who say Google created algorithms that promoted radicalization videos.

But the biggest question may be whether a large number of other government entities — school districts, cities and towns, and state attorney general offices — decide to jump on the bandwagon.

Politics is an issue here, said Hensler. Among business groups, there’s a lot of opposition to mass torts in general, and it can be easy for local press to castigate such suits as being promoted by “greedy plaintiffs’ attorneys,” she noted. These cases involve “powerful well-resourced corporate defendants," she added.

On the other hand, the tide may be turning and elected officials might want to be seen as standing up to the tech giants on behalf of children, judging from a bipartisan bill in Congress last year aimed at protecting kids online.

“Big Tech has brazenly failed children and betrayed its trust, putting profits above safety,” said Senator Richard Blumenthal, one of the co-sponsors, citing “countless harrowing stories … about heartbreaking loss, destructive emotional rabbit holes and addictive dark places rampant on social media.”

Zimmerman reflected on the usual dynamic in cases that involve what he called the public recognition of a crisis.

"They feed off each other. If there’s some recognition in the country that there’s a crisis, litigation can shine a light and persuade people," he said. "That happened with opioids from 2012 to 2022. The public health community saw the problem but it wasn’t widely discussed until there was multidistrict litigation in 2016. Litigation fuels conversation and vice-versa, and it spirals.

“That could be happening here too,” Zimmerman continued. “Whether something is seen as a crisis can change, and litigation plays a role in calling attention to it.”

Days after the firm Keller Rohrback brought the suit on behalf of the Seattle school district, it represented a school district in Kent with similar claims. Last week, the firm brought a third lawsuit, this time in Arizona. “We can tell you that other government entities have expressed an interest in this litigation,” Keller Rohrback's Cari Laufenberg told Courthouse News.

Laufenberg declined to be more specific but said, “Stay tuned.”

The state of Indiana filed a similar case against TikTok in December, but that case was based on a fraud theory and claimed that TikTok lied to get a “teen” rating on app stores.

One issue is whether public entities other than school districts will be able to join the litigation because they might have trouble proving that they were financially harmed, Hensler noted.

But if the lawsuits are all brought by school districts, she continued, it might help create a united front. In the tobacco litigation a large portion of the payouts went into state general funds and not to local communities or tobacco-related remediation. When the opioid litigation took off, more than 3,000 local communities join the suits to prevent a similar outcome and fight for their share of the pie, and this often led to strategic squabbles between the state and local plaintiffs.

The tech industry is hoping to persuade the courts that it’s simply not responsible for any of the harmful content it promotes. "It would be absurd to sue Barnes & Noble because an employee recommended a book that caused emotional harm or made a teenager feel bad. But that's exactly what this lawsuit is doing," complained Carl Szabo, vice president of tech trade association NetChoice.

And the industry will undoubtedly argue that social media platforms also offer enormous benefits to children — which wasn’t true of, say, tobacco products.

“The opioid makers claimed that they made a valuable product and they weren’t responsible for its misuse, and the social media companies will argue that here,” said Zimmerman. “And the courts might say that yes, that’s true — but you still can’t produce a nuisance.”

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