There is undeniable trouble ahead for Silicon Valley.
, a weekly newsletter that surfaces under-the-radar stories about what Trump is doing to the law—and how the law is pushing back. You may have heard about last week’s twin verdicts against Meta and YouTube, which held the tech companies liable for harms their products inflicted on young people.
But the significance of these cases runs deeper: They threaten the legal architecture that has allowed Big Tech to reap trillions of dollars in profits with little risk of consequence in court. The plaintiffs pressed a shrewd theory to pierce the federal shield that these companies have relied upon for decades to escape liability, putting them on the hook for millions in damages today—and quite possibly billions more to come., insisting that they can persuade higher courts to nix these awards as a misapplication of the law. But success is far from a guarantee: The plaintiffs pursued a strategy endorsed by none other than Justice Clarence Thomas, the intellectual leader of the Supreme Court’s 6–3 conservative supermajority. Thomas’ ideas have gained considerable support throughout the lower courts in recent years. And it is entirely possible that his hostility toward Big Tech will carry the day when the plaintiffs’ theory gets tested at SCOTUS., it’s important to understand how Silicon Valley evaded this kind of reckoning for so long. In 1996 Congress enacted Section 230 of the Communications Decency Act, whichas we know it by fostering free expression: It allowed platforms to host a vast range of speech without worrying that they would be liable for its content. An individual can still be sued for defamation if they post something libelous on Facebook. Butcannot be sued for merely hosting that speech thanks to the immunity provided by Section 230. That protection is the main reason why social media companies can facilitate wide-open discussion online.in 2020, these decisions read “extra immunity” into the statute based on “policy and purpose arguments” rather than the plain text of the law. Most alarmingly, courts have wielded the statute to crush lawsuits that accuse social media companies of negligently providing a defective product. These suits claim that developers created, or refused to provide, certain features that made them especially susceptible to harm and misuse. YouTube, for instance, allegedly designed an algorithm that recommended violent terrorist content. Grindr reportedly refused to install basic safety features to prevent harassment. Backpage gave users special privileges that evidently facilitated sex trafficking. Snapchat allegedly rolled out a feature that encouraged reckless driving. In each of these cases, Thomas noted, the lower courts granted the companies immunity under Section 230. Yet in none of them were the plaintiffs actually suing over third-party speech posted on the platforms. Each had sought to hold the companies liable for “product design flaws—that is, the defendant’s own misconduct.” But courts tossed the suits anyway. They reasoned that speech posted by others, like sexual harassment and terrorist recruitment, was still the true cause of the plaintiffs’ injuries. And platforms cannot be penalized for hosting this kind of speech.But that logic is, as Thomas wrote, more of a “policy argument” than a legal one. Section 230 clearly protects tech companies from being sued as the mere “publisher” of other people’s speech. It does not, on its face, shield these corporations from suit as the creators of a defective product that negligently serves users this speech in harmful ways. Thomasin 2024, this time joined by Justice Neil Gorsuch, in a disturbing case brought by a victim of child sexual abuse. The plaintiff accused Snapchat of encouraging minors to lie about their age and enabling adults to commit abuse through certain features, including self-deleting messages. Yet the lower courtunder Section 230. Thomas and Gorsuch expressed serious doubts that the statute actually exonerates platforms for “deliberately structuring” in a way that could “facilitate” illegal and dangerous activity. Thomas urged the court to consider whether the statute really “immunizes platforms for their own conduct.”The plaintiffs who won major payouts against Meta and YouTube last week followed Thomas’ road map. In a California case,by Meta’s own damning internal documents.) The jury agreed, awarding the plaintiffs $6 million in damages. In a New Mexico case, the state attorney generalharm was inflicted by third-party speech, like predatory messages from child abusers. But they insisted that the platforms themselves negligently enabled this harm through faulty design of their services. This strategy echoed the Big Tobacco lawsuits of the 1990s, which faulted tobacco companies for making cigarettesdangerous by adding chemicals that would get users addicted. And like those suits, it worked—at least for now. The theory will be tested more in the coming months and years: More than 40 state attorneys general areCPAC Used to Be the Most Important Event of the Year for Republicans. In 2026, Something Changed.an interpretation of Section 230 that immunizes platforms for their own negligent designs. Thomas and Gorsuch have already taken up this cause, but the rest of the justices haven’t yet weighed in. In recent years, the justices have been wary of big decisions thatthat these platforms deserve punishment for ostensibly censoring conservative speakers. His hostility toward Big Tech marks a notable departure from hisRegardless of where SCOTUS eventually lands, there is undeniable trouble ahead for Silicon Valley. When Thomas stakes out a position, the. And he has already validated the theory that drove last week’s landmark verdicts against Big Tech. These cases are not a slam dunk for the plaintiffs or defendants on appeal; with so much money at stake, the upcoming battle will be brutal for both. But it is always better to arrive at this court with Thomas already on your
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