Latest / Bloomberg Law / Conversion Therapy Ban Struck Down & Social Media Addiction

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Conversion Therapy Ban Struck Down & Social Media Addiction · Bloomberg Law

• 0:02
  Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
• 0:09
  Speaker 2: The Supreme Court ruled against a law banning conversion therapy
• 0:13
  Speaker 2: for LGBTQ kids in Colorado. In an eight to one ruling,
• 0:18
  Speaker 2: the Court sided with a Christian counselor who says she
• 0:22
  Speaker 2: has a constitutional right to engage in talk therapy to
• 0:26
  Speaker 2: try to change a child's sexual orientation or gender identity.
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  Speaker 2: The justices found the Colorado law infringes on her free
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  Speaker 2: speech rights by discriminating on the basis of viewpoint. Liberal
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  Speaker 2: Justice Katanji Brown Jackson was the only dissenter, and she
• 0:44
  Speaker 2: took the unusual stemp of reading a summary of her
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  Speaker 2: opinion from the bench to emphasize her disagreement with the
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  Speaker 2: rest of the justices. The ruling casts doubt on similar
• 0:55
  Speaker 2: laws in more than half the states, laws in about
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  Speaker 2: half the states. Guest is Columbia Law School professor Suzanne Goldberg.
• 1:03
  Speaker 2: She's the director of the Sexuality and Gender Law Clinic.
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  Speaker 2: Conversion therapy is rejected by every major medical and mental
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  Speaker 2: health organization, yet the Supreme Court, in this eight to
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  Speaker 2: one decision, finds that Colorado's ban is a violation of
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  Speaker 2: free speech rights. Can you explain their reasoning?
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  Speaker 3: First, I want to affirm what you just said that
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  Speaker 3: every major medical association says this kind of therapy to
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  Speaker 3: change somebody's sexual orientation or gender identity is harmful, especially
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  Speaker 3: to young people. And so the court says, even though
• 1:40
  Speaker 3: that may be the case, Colorado cannot regulate what talk
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  Speaker 3: therapists say to their young patients because those therapists have
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  Speaker 3: a First Amendment free speech right.
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  Speaker 4: In other words, the.
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  Speaker 3: Government of Colorado cannot, through regulating provision of medical care
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  Speaker 3: or healthcare, say you can't say these things, even though
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  Speaker 3: we know and there's evidence that they're harmful.
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  Speaker 2: The ag of Colorado defended the law, saying states have
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  Speaker 2: long regulated medical practices, including treatments carried out through speech,
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  Speaker 2: to protect patients from substandard care. So why doesn't this
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  Speaker 2: law fit under the state regulating mental health professionals.
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  Speaker 3: So the court says, this is speech, it's pure speech,
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  Speaker 3: and under our constitutional doctrine, whenever the government regulates speech,
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  Speaker 3: the Court will impose its very highest level of review,
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  Speaker 3: its most skeptical scrutiny. And it says, in this case,
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  Speaker 3: the lower court made a mistake by applying a lower
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  Speaker 3: level of review and treating this as regular medical regulation,
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  Speaker 3: and Katanji B. Jackson in her dissent says, yes, this
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  Speaker 3: is actually medical regulation. This is totally within the balance
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  Speaker 3: of what a state can do to protect patients against
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  Speaker 3: substandard care. So the two sides are really talking past
• 3:02
  Speaker 3: each other. And one of the concerns is how will
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  Speaker 3: this interfere with the state's ability to protect patients from
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  Speaker 3: what healthcare providers have to say to them.
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  Speaker 2: I don't think it came as any surprise that the
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  Speaker 2: six conservatives voted as they did, but it was surprising
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  Speaker 2: to me that the two liberal justices Sonya so To
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  Speaker 2: Mayor and Elaina Kagan voted against the law. How did
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  Speaker 2: they explain that?
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  Speaker 3: In the concurrence they take the same position that this
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  Speaker 3: is regulation of speech, and its regulation of speech based
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  Speaker 3: on the viewpoint of the speaker, Meaning a speaker can
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  Speaker 3: say I affirm that your LGBT, whatever the young person is,
• 3:49
  Speaker 3: but the speaker the therapist cannot say I don't affirm that,
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  Speaker 3: and you should change. And so that is justice, Kagan writes,
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  Speaker 3: viewpoint discrimination. And the Court has long subjected viewpoint discrimination
• 4:03
  Speaker 3: to its most skeptical kind of scrutiny, that said, there
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  Speaker 3: are many things that the state presumably can regulate and
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  Speaker 3: prohibit a medical provider from saying to a patient. One
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  Speaker 3: of those examples is, you know, a state should be
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  Speaker 3: able to prohibit a provider from encouraging a suicidal patient
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  Speaker 3: to take their own life.
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  Speaker 4: That is also speech.
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  Speaker 3: The Court doesn't wrestle with that, neither the majority nor
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  Speaker 3: the concurring opinion of Justice Kagan.
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  Speaker 2: Justice Jackson felt so strongly that she read a summary
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  Speaker 2: of her opinion from the bench to emphasize her objection here.
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  Speaker 2: But it's often the three liberal justices who are in
• 4:43
  Speaker 2: the dissent in cases like this involving transgender rights. Why
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  Speaker 2: do you think Kagan and Soto Mayor didn't join her.
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  Speaker 3: This is a difficult case in the sense.
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  Speaker 4: That it is government regulation of speech.
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  Speaker 3: All nine of them agree on that. Justice Jackson says, yes,
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  Speaker 3: it's regulation of speech, but incidental.
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  Speaker 4: To regulation of healthcare provision.
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  Speaker 3: Justice is Kagan and so do Mayor stay with the majority,
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  Speaker 3: making this an eight to one ruling. Again, I think
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  Speaker 3: they try to pull back a little bit from some
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  Speaker 3: of the majorities full on, we can never regulate speech,
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  Speaker 3: and they suggest that this is quite a narrow ruling,
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  Speaker 3: But I think we'll have to see. I mean, I
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  Speaker 3: do think there are always concerns when allowing government to
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  Speaker 3: regulate speech, that the government will regulate too much and
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  Speaker 3: suppress speech. And that is clearly something that Justice Kagan
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  Speaker 3: is attuned to as well as the majority, but so
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  Speaker 3: is Justice Jackson. They just see it differently.
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  Speaker 2: Did the majority deal with the fact that conversion therapy
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  Speaker 2: is opposed by every major medical organization and studies have
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  Speaker 2: linked it to depression, post dramatic stress, and higher rate
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  Speaker 2: of suicide.
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  Speaker 3: So the majority says, that's what these medical associations think now.
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  Speaker 3: But the government is not allowed to prescribe an orthodoxy
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  Speaker 3: of views. And it's standard again in First Amendment, to
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  Speaker 3: say that the reason we are so protective of speech
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  Speaker 3: is to allow for the contestation of ideas, to allow
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  Speaker 3: that maybe at one point our views are mistaken and
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  Speaker 3: we want to change them. And they make the point that, well,
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  Speaker 3: you know, some years ago states might have said you
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  Speaker 3: cannot support a young person who says there lesbian or gay,
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  Speaker 3: or bisexual or transgender. You have to tell them to change.
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  Speaker 3: And so the majority says, you know that could happen.
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  Speaker 3: We can't allow any of this. That said, there remains
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  Speaker 3: this question whether governments can protect young patients who are
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  Speaker 3: facing a demonstrable risk empirically validated if this kind of
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  Speaker 3: therapy is used on them, And so it seems to
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  Speaker 3: me the majority does not actually wrestle fully with that question.
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  Speaker 2: The court is sending the case back to the lower
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  Speaker 2: court to apply a stricter standard. But is it an
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  Speaker 2: almost foregone conclusion that the law won't pass a strict
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  Speaker 2: scrutiny test.
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  Speaker 3: I'd never like to say anything absolutely foregone, but I
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  Speaker 3: don't think anybody expects this law to survive. And of course,
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  Speaker 3: more than half the states in this country have this kind.
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  Speaker 4: Of law or similar laws.
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  Speaker 3: Some of them are worded differently, so they may be
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  Speaker 3: evaluated somewhat differently. And it's important to also know that
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  Speaker 3: virtually all of these laws were passed with bipartisan support. Right,
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  Speaker 3: the evidence isn't in question here from any major or
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  Speaker 3: nonfringe analyst of the data.
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  Speaker 4: What's also important to.
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  Speaker 3: Know is that this ruling, strong as it is, in
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  Speaker 3: favor of the therapist who says she might want to
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  Speaker 3: provide this kind of therapy, does not say conversion therapy
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  Speaker 3: is good. It does not say conversion therapy is helpful
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  Speaker 3: to patients. It doesn't disagree with the Medical Association saying
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  Speaker 3: conversion therapy is harmful, and so people young people who
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  Speaker 3: suffer as a result of conversion therapy can still file
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  Speaker 3: medical malpractice lawsuits and consumer fraud lawsuits and obtain a remedy.
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  Speaker 3: What states have been trying to do with these laws
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  Speaker 3: is prevent the harm in the first place, and the
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  Speaker 3: Supreme Court has just taken away state's capacity to do
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  Speaker 3: that in many respects.
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  Speaker 2: In this case, Colorado hasn't sought to enforce this law.
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  Speaker 2: And it sort of reminds me of the Supreme Court
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  Speaker 2: case where the web designer said she didn't want to
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  Speaker 2: design for same sex couples, and yet no same sex
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  Speaker 2: couple had ever asked her to do a web design.
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  Speaker 2: So why is the Supreme Court taking these cases where
• 9:00
  Speaker 2: no one's been injured, no one's been harmed.
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  Speaker 3: There are at least two responses to your wise question.
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  Speaker 3: The first is that when the First Amendment is an issue,
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  Speaker 3: when people's free speech rights might be chilled, which was
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  Speaker 3: the argument here, the Court is more willing to take
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  Speaker 3: a case that is hypothetical.
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  Speaker 4: As you just said, right, the Colorado.
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  Speaker 3: Hasn't enforced the law, she hasn't been in any trouble
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  Speaker 3: with the law.
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  Speaker 4: So this is really, you.
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  Speaker 3: Know, a step outside of that kind of hypothetical we
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  Speaker 3: might offer in a law school classroom.
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  Speaker 4: It's not a real case yet.
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  Speaker 3: But when somebody makes an argument that their speech is
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  Speaker 3: being chilled by the government regulation, that kind of argument
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  Speaker 3: is typically allowed to go forward for good reason. Right,
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  Speaker 3: you know, government can chill speech, and we don't want
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  Speaker 3: people to have to wait to face criminal punishment or
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  Speaker 3: fines before they engage in their speech. There's a second
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  Speaker 3: point though, too, to your question, like, why are we
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  Speaker 3: seeing these cases? Why are people bringing cases when they
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  Speaker 3: haven't faced the problem, when they haven't not only gotten
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  Speaker 3: in trouble, they haven't even in the case of the
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  Speaker 3: web design or offered the services, and neither did ms Childs.
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  Speaker 3: And there I think we can see that this is
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  Speaker 3: part of a broader agenda on the part of legal
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  Speaker 3: organizations to find plaintiffs who are willing to make these
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  Speaker 3: claims with a goal of pushing the law in a
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  Speaker 3: direction that really restricts the kind of legal protections for
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  Speaker 3: LGBT people.
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  Speaker 2: Yeah, the therapist was represented by the Alliance Defending Freedom,
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  Speaker 2: a Christian legal group that has been behind some of
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  Speaker 2: these high profile cases, including overturning the constitutional right to abortion.
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  Speaker 2: Let's take a broad view for a minute. The Supreme
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  Speaker 2: fort has been consistently ruling against transgender rights in recent years.
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  Speaker 2: It upheld the Tennessee law barring gender firming care for
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  Speaker 2: transgender youth. It allowed Trump to ban transgender people from
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  Speaker 2: the military and to require new passpoorts to reflect the
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  Speaker 2: sex on the holder's birth certificate. There was the decision
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  Speaker 2: allowing parents to opt out when LGBTQ storybooks were reading classrooms.
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  Speaker 2: And if the oral arguments are any indication, the Court
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  Speaker 2: is likely to uphold state laws banning transgender girls and
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  Speaker 2: women from competing on female athletic teams. It just seems relentless.
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  Speaker 2: It's one case after another.
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  Speaker 3: I think it certainly does have a relentless feel. And
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  Speaker 3: when you couple this most recent series of rulings with
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  Speaker 3: the more than a thousand bills that have been introduced
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  Speaker 3: in state legislatures around the country to restrict transgender people
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  Speaker 3: in the daily activities of living in identity documents like
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  Speaker 3: a driver's license that looks like you, or access to
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  Speaker 3: a bathroom room, or ability to get a passport that
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  Speaker 3: reflects identity. There are so many restrictions, so what can
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  Speaker 3: we say. Many of these cutbacks on protection for transgender
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  Speaker 3: people are coming in the guise of free speech or
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  Speaker 3: protecting the religious freedom of people who don't want to
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  Speaker 3: be around transgender people or don't want their kids to
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  Speaker 3: hear stories about transgender people or lesbian and gay people
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  Speaker 3: in that case. Interestingly, the sports case is not a
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  Speaker 3: religious freedom case. It's not a First Amendment case. There
• 12:34
  Speaker 3: the question is what is the scope of sex discrimination law?
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  Speaker 3: Does it protect all athletes who are female to be
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  Speaker 3: able to participate.
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  Speaker 4: In girls and women's sports.
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  Speaker 3: Certainly, the majorities appear quite skeptical of the athletes arguments
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  Speaker 3: in those cases, the transgender athletes arguments in those cases,
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  Speaker 3: and the states arguments. So we'll see, but it's a
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  Speaker 3: very challenging time. On the other hand, there are also
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  Speaker 3: no birth states that are trying to really protect and
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  Speaker 3: affirm their transgender youth to make sure that they have
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  Speaker 3: healthy places to go to school, access to healthcare. But
• 13:10
  Speaker 3: the concern is, of course that the Trump administration right
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  Speaker 3: now is trying to cut.
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  Speaker 4: That off as well.
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  Speaker 2: It's challenging to say the least. Thanks so much, Suzanne.
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  Speaker 2: That's Professor Suzanne Goldberg of Columbia Law School. Coming up next,
• 13:25
  Speaker 2: we'll take a look at the implications of the first
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  Speaker 2: verdict in a social media addiction trial. I'm June Grosse.
• 13:32
  Speaker 2: When you're listening to Bloomberg. The jury's verdict in the
• 13:36
  Speaker 2: first social media addiction trial has been called a landmark verdict,
• 13:41
  Speaker 2: a game changer. A jury ordered Meta and Google to
• 13:45
  Speaker 2: pay six million dollars to a twenty year old woman
• 13:48
  Speaker 2: who said her addiction to social media caused her mental
• 13:52
  Speaker 2: health struggles. But it's just the first trial in a
• 13:55
  Speaker 2: very long line of similar cases. Plus the company's a
• 13:59
  Speaker 2: pee are ahead. The verdict may be a potential crack
• 14:03
  Speaker 2: in the social media company's shield from legal responsibility for
• 14:07
  Speaker 2: what happens on their platforms, but it doesn't put them
• 14:11
  Speaker 2: in the same category as big tobacco or opioid makers,
• 14:16
  Speaker 2: at least not yet. My guest is an expert in
• 14:19
  Speaker 2: internet law, Professor Eric Goldman, Associate Dean for Research at
• 14:23
  Speaker 2: Santa Clara University School of Law. This verdict is being
• 14:28
  Speaker 2: described as landmark. The plantiffs attorney called it a game
• 14:33
  Speaker 2: changer turning point, what's your take on the import of this.
• 14:39
  Speaker 1: The State Court has set up three Bellweather trials. The
• 14:44
  Speaker 1: idea is to take the hundreds of cases that are
• 14:46
  Speaker 1: currently filed and pick three that will give the parties
• 14:50
  Speaker 1: better information about how jurys are responding to the arguments.
• 14:54
  Speaker 1: We got a verdict in the first of the three
• 14:57
  Speaker 1: Bellweather trials, but it's only one of the three, and
• 15:00
  Speaker 1: that respect, it's only one of the potential hundreds of
• 15:03
  Speaker 1: cases that are out there, So it's a little hard
• 15:05
  Speaker 1: to put too much weight in the single data point
• 15:08
  Speaker 1: about how the jurors are responding. It's not meant to
• 15:11
  Speaker 1: be the answer to all the questions. Having said that,
• 15:15
  Speaker 1: it does answer perhaps the most important question the plaintiffs
• 15:18
  Speaker 1: needed to know, which is our jury is buying the
• 15:22
  Speaker 1: basic arguments are making. Do they generally believe social media
• 15:25
  Speaker 1: services should be responsible for their user's harms? The jury
• 15:28
  Speaker 1: answered yes. If that is the answer that will continue
• 15:31
  Speaker 1: in the other trials, then that does change the state
• 15:35
  Speaker 1: of play quite a bit.
• 15:36
  Speaker 2: The plaintiffs didn't win over all the jurors. It was
• 15:39
  Speaker 2: tend to two, with two jurors holding out for the companies.
• 15:43
  Speaker 2: On all the questions, and it took nine days to
• 15:46
  Speaker 2: reach the verdict. And I assume that this is one
• 15:50
  Speaker 2: of the plaintiff's best cases because they chose it to
• 15:52
  Speaker 2: go first. So does that leave room for different decisions
• 15:57
  Speaker 2: in the other cases coming up to clarify?
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  Speaker 1: I don't know that I would consider this to be
• 16:02
  Speaker 1: the plaintiff's best case. I don't think that's exactly how
• 16:04
  Speaker 1: they selected the bell Weather trials. It's more designed to
• 16:07
  Speaker 1: be a representative case. But having said that, the fact
• 16:10
  Speaker 1: that it was tend to is I think actually quite significant.
• 16:13
  Speaker 1: Despite many days of deliberation, there were two jurors who
• 16:17
  Speaker 1: just didn't buy the plaintiff's basic argument, could not be
• 16:21
  Speaker 1: swayed by the remainder of the majority. And one could
• 16:25
  Speaker 1: imagine with a different set of facts, a different presentation
• 16:29
  Speaker 1: of the arguments by the litigants, and possibly a different
• 16:33
  Speaker 1: jury composition, that a different jury might reach a different
• 16:37
  Speaker 1: conclusion in another case. It's not like this is so
• 16:40
  Speaker 1: obviously unanimously a basis for imposing liability. So that's part
• 16:45
  Speaker 1: of the whole point of doing the bell Weather process
• 16:48
  Speaker 1: is to have several trials and not rely on any
• 16:50
  Speaker 1: single data point as dispositive. But it also is a sign,
• 16:54
  Speaker 1: combined with the new Mexico jury verdic that came out
• 16:57
  Speaker 1: near the same time, that maybe jury's will buy this,
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  Speaker 1: maybe not unanimously, but in general are sympathetic to the
• 17:03
  Speaker 1: Planet's argument. So I wouldn't put too much stoft in
• 17:06
  Speaker 1: the ten two verdict, but it does suggest that this
• 17:09
  Speaker 1: is not a definitive slam done case for the plaintiffs.
• 17:13
  Speaker 2: Also, punitive damages, as you know, meant to punish the company,
• 17:17
  Speaker 2: and we've seen crazy punitives in cases over the years,
• 17:20
  Speaker 2: really high punitives. Here, three million dollars seems like a
• 17:24
  Speaker 2: slap on the risk to these companies. It won't even
• 17:27
  Speaker 2: register in their balance sheet.
• 17:29
  Speaker 1: It's a little hard to contextualize the number because, as
• 17:33
  Speaker 1: you know, six million dollars is a rounding error for
• 17:36
  Speaker 1: Google a Meta, that number itself doesn't matter to them.
• 17:40
  Speaker 1: But the point is that this is the first of
• 17:42
  Speaker 1: what could be potentially thousands of cases, and so we
• 17:46
  Speaker 1: have to multiply the six million dollar number by potentially
• 17:50
  Speaker 1: thousands of other claims, at which point that number becomes
• 17:54
  Speaker 1: very large, a number that even Meta and Google will notice.
• 17:58
  Speaker 1: So I don't feel like six million dollar numbers at
• 18:01
  Speaker 1: all a low number. They may be less than the
• 18:05
  Speaker 1: plaintiff requested in this case, but it's a signal of
• 18:08
  Speaker 1: the industry's potential financial exposure. Six million times the potential
• 18:13
  Speaker 1: number victims equals a lot of money, maybe even more
• 18:17
  Speaker 1: than the entire industry has.
• 18:19
  Speaker 2: So the social media companies say they'll appeal, obviously, do
• 18:23
  Speaker 2: they have good grounds what you'd consider good grounds for appeal.
• 18:28
  Speaker 1: I do think that there's some important issues that the
• 18:30
  Speaker 1: appellate court will have to weigh in on. The trial
• 18:33
  Speaker 1: court in the state court case as well as federal case,
• 18:36
  Speaker 1: have made number of choices that were not obvious that
• 18:40
  Speaker 1: in some ways broke new ground, and as a result,
• 18:44
  Speaker 1: I don't really treat them as the final word on
• 18:46
  Speaker 1: matter until we hear from other judges, appellate judges if
• 18:49
  Speaker 1: they actually even agree with those decisions. So I think
• 18:53
  Speaker 1: that there are several bases on which the defendants have
• 18:57
  Speaker 1: good grounds for appeal, But that doesn't mean that the
• 18:59
  Speaker 1: appeal is likely to succeed. I kind of rate it
• 19:03
  Speaker 1: like a fifty to fifty. I can't really predict. The
• 19:05
  Speaker 1: crystal ball is unclear. I think that there's good grounds
• 19:08
  Speaker 1: for peel I think that the plaintiffs have some precedent
• 19:10
  Speaker 1: to support them, even if I disagree with the conclusions
• 19:13
  Speaker 1: they reach, And so, you know, this is exactly how
• 19:16
  Speaker 1: the judicial system is supposed to work. Complex tough questions
• 19:19
  Speaker 1: get posed to the first level of review, then the
• 19:22
  Speaker 1: second overview, and almost certainly a third level of review.
• 19:26
  Speaker 1: There will be a lot of eyeballs on these questions
• 19:28
  Speaker 1: to answer the tough ones.
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  Speaker 2: Do you think one of the grounds for appeal will
• 19:31
  Speaker 2: be based on Section two thirty that generally immunizes online
• 19:36
  Speaker 2: platforms for liability for user generated content.
• 19:40
  Speaker 1: I think that Section two thirty is one of the
• 19:43
  Speaker 1: solid grounds for appeal in this case. Essentially, the plaintiffs
• 19:47
  Speaker 1: have had to argue that they're not suing over the
• 19:50
  Speaker 1: content that any individual victim was exposed to, but the
• 19:54
  Speaker 1: way in which that content was delivered, the various design
• 19:57
  Speaker 1: features that help get the content in front of the victim.
• 20:02
  Speaker 1: To me, that line between the content and the method
• 20:05
  Speaker 1: of presentation of the content is illusory. They're all the
• 20:09
  Speaker 1: same thing in my mind. They're all part of the
• 20:11
  Speaker 1: general publication or editorial decisions that the service made about
• 20:15
  Speaker 1: how to best and engage with its users. So from
• 20:19
  Speaker 1: my perspective, that effort to navigate around what is third
• 20:23
  Speaker 1: party content and what is the service's first party design
• 20:26
  Speaker 1: choices really sophisticated, nuanced arguments, but they're not clear to
• 20:30
  Speaker 1: me at all that the trial court got it right.
• 20:33
  Speaker 2: So do you think that this will lead social media
• 20:35
  Speaker 2: companies to change the way they operate.
• 20:40
  Speaker 1: I think that it would be remarkable if social media
• 20:44
  Speaker 1: doesn't change substantially over the next few years. If the
• 20:47
  Speaker 1: final outcome and a few years from now, is that
• 20:50
  Speaker 1: social media has retained the status quo it has today,
• 20:53
  Speaker 1: I think that would be remarkable. And it's not just
• 20:56
  Speaker 1: because of the litigation, though. If the plaintiffs win any
• 21:00
  Speaker 1: part of litigation, almost certainly the court will order changes
• 21:04
  Speaker 1: to the service, or any settlement agreement would require changes
• 21:08
  Speaker 1: to the services. But the reason why I'm so confident
• 21:11
  Speaker 1: that social media is under extraordinary pressure to change is because,
• 21:15
  Speaker 1: in addition to the litigation, state legislatures throughout the country
• 21:19
  Speaker 1: are passing laws that are requiring structural and tactical changes
• 21:24
  Speaker 1: to how the services operate.
• 21:27
  Speaker 4: And unless the.
• 21:28
  Speaker 1: Services can also overturn all of those laws, those laws
• 21:32
  Speaker 1: are actually the governing rules that will dictate how social
• 21:35
  Speaker 1: media services operate, so as a practical matter, the litigation
• 21:39
  Speaker 1: is only one path to where it's change. The legislation
• 21:43
  Speaker 1: is another path towards change, and of course the services
• 21:46
  Speaker 1: retain the voluntary right to make additional changes. I think
• 21:50
  Speaker 1: it would be foolhardy on the part of any of
• 21:51
  Speaker 1: your listeners to assume that the social media services they
• 21:54
  Speaker 1: have today, whether they love them or hate them, there's
• 21:56
  Speaker 1: going to be the social media services they have in
• 21:58
  Speaker 1: a few years from now, and we should talk about
• 22:01
  Speaker 1: what that means for all of us, because we're not
• 22:04
  Speaker 1: in the courtroom to express what we want from social media,
• 22:07
  Speaker 1: but our fates, our ability to use the services is
• 22:10
  Speaker 1: being dictated right now in courts and in the legislatures
• 22:14
  Speaker 1: around the country.
• 22:15
  Speaker 2: Will it be the social media companies putting in safe cards,
• 22:19
  Speaker 2: age verification, parental control, or will they have to change
• 22:24
  Speaker 2: what the jury found were addictive features?
• 22:28
  Speaker 1: All of the above and possibly more. In other words,
• 22:31
  Speaker 1: the litigation puts in play a number of very specific
• 22:35
  Speaker 1: tactical choices that the services have made, things like auto
• 22:39
  Speaker 1: play or infinite scrolling or algorithmic personalization. These are tactical
• 22:45
  Speaker 1: changes that might need to be changed in order to
• 22:48
  Speaker 1: avoid liability going forward. All of those features are also
• 22:52
  Speaker 1: being regulated by the legislatures who are saying you cannot
• 22:56
  Speaker 1: have infinite scrolling, you cannot have auto play, and so on.
• 23:00
  Speaker 1: So either way, one way or another, those services are
• 23:02
  Speaker 1: going to have to evaluate the functions that they have.
• 23:05
  Speaker 1: But the plantiff's basic argument doesn't rely on any specific
• 23:09
  Speaker 1: design feature. The basic argument is the way in which
• 23:12
  Speaker 1: you've designed the service overall was intended to addict your
• 23:16
  Speaker 1: users and cause them harm, And to the extent that
• 23:20
  Speaker 1: that general statement becomes part of the law, whether in
• 23:24
  Speaker 1: legislation or litigation, we could get there either way. Then
• 23:28
  Speaker 1: the services have to review everything that they do and
• 23:31
  Speaker 1: consider how that might impact potential victims. As a result,
• 23:35
  Speaker 1: there's no limit or boundary to what structural changes could
• 23:39
  Speaker 1: be forced through the legislation or the litigation. In either case,
• 23:44
  Speaker 1: everything is in play. And that's why again I'm so
• 23:47
  Speaker 1: concerned and or confident that social media services will not
• 23:50
  Speaker 1: look the same in a few years from now.
• 23:53
  Speaker 2: If the addictive features are changed, does that mean that
• 23:57
  Speaker 2: the value to advertisers changes as well?
• 24:02
  Speaker 1: The short answers, we don't know how the changes to
• 24:05
  Speaker 1: any particular product features will affect the revenue or profits
• 24:09
  Speaker 1: of the services, and I think it's actually impossible to model.
• 24:14
  Speaker 1: There is senset, a secret sauce that drives user engagement
• 24:17
  Speaker 1: in social media, and it might be that small changes
• 24:21
  Speaker 1: to that secret sauce, or changes that don't relate to
• 24:23
  Speaker 1: the secret sauce, have no impact on the bottom line.
• 24:26
  Speaker 1: It is also possible that even the smallest change might
• 24:29
  Speaker 1: have dramatic impact on the bottom line and really change
• 24:32
  Speaker 1: the value proposition for the services, how they structure their offerings,
• 24:37
  Speaker 1: and how they are able to profit from them. So
• 24:39
  Speaker 1: the short answers, we don't really know how any of
• 24:42
  Speaker 1: the particular conversations that are taking place could impact the
• 24:45
  Speaker 1: bottom line. We do know that in the end, if
• 24:49
  Speaker 1: the plaintiff's lawyers or the legislators have absolute power to
• 24:53
  Speaker 1: dictate over whether or not something is going to cause
• 24:56
  Speaker 1: victims harm, I don't know that there is a profitable
• 24:59
  Speaker 1: model at that point. In other words, at that point,
• 25:01
  Speaker 1: the services can no longer design their offerings for their customers.
• 25:06
  Speaker 1: Somebody else external to the conversation is going to come
• 25:09
  Speaker 1: in and dictate how that will work, and if so,
• 25:12
  Speaker 1: the niche becomes much less lucrative. Maybe not even profitable.
• 25:16
  Speaker 2: Coming up next on the Bloomberg Law Show, I'll continue
• 25:19
  Speaker 2: this conversation with Professor Eric Goldman of Santa Clara University
• 25:24
  Speaker 2: School of Law. What about the impact of any changes
• 25:28
  Speaker 2: in social media on the communities that don't have a
• 25:31
  Speaker 2: voice at trial. I'm June Grosso and you're listening to Bloomberg.
• 25:38
  Speaker 2: I've been talking to Internet law expert Professor Eric Goldman
• 25:42
  Speaker 2: of Santa Clara University Law School about the implications of
• 25:46
  Speaker 2: the verdict against Meta and Google in the first social
• 25:49
  Speaker 2: media addiction trial. Eric, you've said that it's the Internet
• 25:53
  Speaker 2: that's on trial here, not social media. Explain what you
• 25:57
  Speaker 2: mean by that.
• 25:58
  Speaker 1: In addition to the lawsuits against social media services, the plaintiffs'
• 26:03
  Speaker 1: lawyers have taken the same basic legal paradigms that they're
• 26:07
  Speaker 1: advanced in those cases and advance them against other parts
• 26:10
  Speaker 1: of the Internet. I'll mention three, although it's not limited
• 26:13
  Speaker 1: to these three generative AI model makers, video game makers,
• 26:17
  Speaker 1: and social gaming. In all three of those cases, the
• 26:21
  Speaker 1: plaintiffs are essentially arguing that the services are designed to
• 26:25
  Speaker 1: addict users, that addiction causes harm, and therefore the services
• 26:29
  Speaker 1: should be liable for the resulting harm the same exact
• 26:32
  Speaker 1: set of arguments in the social media addiction cases. So
• 26:35
  Speaker 1: if the arguments work in social media addiction, they will
• 26:38
  Speaker 1: be advanced and have a greater degree of likelihood of
• 26:42
  Speaker 1: succeeding against these other major segments of the Internet. And
• 26:46
  Speaker 1: in fact, if the arguments work, there's no segment of
• 26:49
  Speaker 1: the Internet that couldn't be potentially susceptible to the exact
• 26:53
  Speaker 1: same arguments that some function on the Internet is designed
• 26:56
  Speaker 1: to addict users, it causes harm, they should be financial responsible.
• 27:01
  Speaker 1: So if the arguments work in social media addiction, they
• 27:05
  Speaker 1: will be potentially more successful everywhere else on the Internet,
• 27:08
  Speaker 1: and that could dramatically change not just social media, but
• 27:11
  Speaker 1: the entire innet. And that's why the stakes are so
• 27:14
  Speaker 1: high for these bell Weather trials. They're giving us a
• 27:16
  Speaker 1: prediction of how likely that reshaping of the Internet is.
• 27:20
  Speaker 2: Lexi Hazam, one of the lead attorneys representing plaintiffs and
• 27:24
  Speaker 2: school districts in similar cases, said, we have the wind
• 27:28
  Speaker 2: at our backs going into the next trials, and these
• 27:30
  Speaker 2: companies are under a lot of pressure. I mean, does
• 27:34
  Speaker 2: one trial affect the next trial?
• 27:36
  Speaker 1: It doesn't, And that's in fact the whole nature of
• 27:39
  Speaker 1: the Bell Weather trials is to do basically a statistical
• 27:42
  Speaker 1: sampling of the entire corpus of claims and try to
• 27:46
  Speaker 1: get a sense about how to value that entire corpus
• 27:49
  Speaker 1: based on some independently chosen data points. So the plaintiffs
• 27:54
  Speaker 1: are I think excited because their arguments worked and that
• 27:58
  Speaker 1: gives them more confidence of the argument are going to
• 28:00
  Speaker 1: work in the next case. But they're independent and entirely
• 28:03
  Speaker 1: possible that the next trial will reach a completely different result,
• 28:07
  Speaker 1: maybe massive liability far beyond six million, or maybe zero dollars,
• 28:12
  Speaker 1: or no liability at all. That's the whole point of
• 28:15
  Speaker 1: sampling the different cases. Now, having said that, each side
• 28:18
  Speaker 1: has now heard the other side's best evidence and they're
• 28:21
  Speaker 1: going to iterate. Both sides will change their messaging to
• 28:25
  Speaker 1: try to reach a different outcome or a better outcome
• 28:27
  Speaker 1: for them. So the plaintiff lawyers may be feeling confident
• 28:32
  Speaker 1: that having seen the best evidence of the defendants, they
• 28:36
  Speaker 1: have a better sense about how they can even overcome
• 28:38
  Speaker 1: it more and that may be giving them some confidence
• 28:41
  Speaker 1: as well.
• 28:42
  Speaker 2: The social media cases are being compared to the tobacco
• 28:46
  Speaker 2: litigation with the Global settlement and the opioid litigation. Do
• 28:51
  Speaker 2: you see a direct comparison.
• 28:53
  Speaker 1: Yes and no, So let me reject the analogy. But
• 28:57
  Speaker 1: then they'll come back to how there's some kernel of
• 28:59
  Speaker 1: truth to it. So, in general, start with something like tobacco.
• 29:03
  Speaker 1: Tobacco has no known health benefits to its consumers. It's
• 29:07
  Speaker 1: only either neutral to their health or it's negative, whereas
• 29:11
  Speaker 1: with social media, we know that it has substantial benefits
• 29:14
  Speaker 1: to its users, in addition to some users driving potentially
• 29:18
  Speaker 1: significant detriments from it. And so trying to take the
• 29:22
  Speaker 1: regulation or the legal treatment of something that has no
• 29:26
  Speaker 1: known health benefits to something that has substantial benefits that
• 29:30
  Speaker 1: need to be accommodated and accounted for. I just think
• 29:33
  Speaker 1: it's like apples and oranges. I also think that it's
• 29:36
  Speaker 1: not an out of comparison because cigarettes are a physical
• 29:40
  Speaker 1: space problem that causes physical harm, causes health harm to
• 29:44
  Speaker 1: its consumers, whereas social media is an intangible venue for
• 29:49
  Speaker 1: publishing content. And trying to draw analogies between offline physical
• 29:54
  Speaker 1: space items to online intangile items, including the publication of
• 29:58
  Speaker 1: content which gets special constitutional protection, I just think it's
• 30:02
  Speaker 1: an apt Now, the reason why the big tobacco analogy
• 30:04
  Speaker 1: might be relevant is first because both sides are approaching
• 30:08
  Speaker 1: this as if it is a litigation war. And normally,
• 30:11
  Speaker 1: when you think about people litigating against big giants like
• 30:15
  Speaker 1: Google or Meta, you just assume that the plaintiffs are
• 30:18
  Speaker 1: going to be outgunned financially or in terms of their
• 30:21
  Speaker 1: legal expertise. But that's not the case at all. Here.
• 30:23
  Speaker 1: You have an extraordinarily well funded group of plaintiffs who
• 30:27
  Speaker 1: have spared no expense at trying to get to successful outcomes.
• 30:31
  Speaker 1: Just like in Big Tobacco, the amount of money on
• 30:34
  Speaker 1: both sides was extraordinary, and that's true here as well.
• 30:37
  Speaker 1: This case is going to be litigated to the very
• 30:40
  Speaker 1: nth degree by both sides. There's no imbalance in the
• 30:43
  Speaker 1: power relationship there. The other reason why it could be
• 30:47
  Speaker 1: like the Big Tobacco cas is because it could change
• 30:50
  Speaker 1: the industry. It is possible that social media as an
• 30:53
  Speaker 1: industry will look different at the end of this litigation,
• 30:56
  Speaker 1: just like the tobacco industry looked different at the end
• 30:58
  Speaker 1: of the Big Tobacco litigation. So in that sense, the
• 31:01
  Speaker 1: stakes are super high and I can see the analogy
• 31:04
  Speaker 1: on that front.
• 31:05
  Speaker 2: And you mentioned before that any changes in social media
• 31:09
  Speaker 2: will affect other communities who don't have a voice at trial.
• 31:14
  Speaker 2: Can you tell me more about that?
• 31:16
  Speaker 1: So the general presumption is that social media services are
• 31:19
  Speaker 1: just evil, that everyone who uses them hates them, doesn't
• 31:23
  Speaker 1: enjoy using them, wishes that you could stop using them,
• 31:26
  Speaker 1: and that's just not true. There are so many communities
• 31:30
  Speaker 1: that derive really substantial life affirming benefits from social media.
• 31:35
  Speaker 1: I'm just going to mention a few. The first is
• 31:37
  Speaker 1: the LGBTQ community. Social media has proven to be a
• 31:41
  Speaker 1: lifeline for many members of that community who do not
• 31:44
  Speaker 1: have a good physical space network or who are afraid
• 31:47
  Speaker 1: to access it because of safety or other concerns, and
• 31:50
  Speaker 1: social media has created a space where the members of
• 31:54
  Speaker 1: that community can learn from each other, engage with each other,
• 31:57
  Speaker 1: and help understand their lives and the needs that they have.
• 32:01
  Speaker 1: Taking away social media or restricting their access will materially
• 32:05
  Speaker 1: harm the LGBTQ community. Another community that derives substantial benefits
• 32:10
  Speaker 1: in social media is the neurodiverse community, who sometimes struggle
• 32:15
  Speaker 1: in communicating in physical space given the particular ways in
• 32:19
  Speaker 1: which their minds work. Social media provides them a different
• 32:22
  Speaker 1: form of outlet, a different way of expressing themselves. And
• 32:24
  Speaker 1: taking away social media. Restricting their access social media will
• 32:28
  Speaker 1: materially harm the neurodiverse community who cannot necessarily transfer all
• 32:33
  Speaker 1: of their social engagement to other forms of conversations. And
• 32:38
  Speaker 1: the third I'll mention are people who have rare diseases.
• 32:42
  Speaker 1: And I'll give it a personal example. My wife has
• 32:44
  Speaker 1: a lung cancer diagnosis of a specific mutation of which
• 32:47
  Speaker 1: there are about maybe six thousand Americans who have it,
• 32:50
  Speaker 1: and that community is so spread out throughout the country
• 32:53
  Speaker 1: that it cannot form a geographically based conversation. The only
• 32:57
  Speaker 1: way that they can find each other in group together
• 33:00
  Speaker 1: is online through social media. And the group that my
• 33:03
  Speaker 1: wife's community is formed has met material benefits for the
• 33:08
  Speaker 1: members of that community. It has helped them improve their
• 33:11
  Speaker 1: lives and in some cases lengthen their lives because of
• 33:14
  Speaker 1: the fact that they could converse and organize on social media.
• 33:17
  Speaker 1: So restricting or taking away access to that community will
• 33:21
  Speaker 1: materially be a detriment to that entire community.
• 33:23
  Speaker 2: You talked about state laws, but what about Congress. Do
• 33:26
  Speaker 2: you think that these verdicts can move Congress to act.
• 33:31
  Speaker 1: It's a little hard to predict what Congress is going
• 33:33
  Speaker 1: to do. Congress is already dysfunctional. The twenty twenty six
• 33:37
  Speaker 1: maternal elections might make it even more difficult for things
• 33:41
  Speaker 1: to move in Congress. Having said that, the jury verdict
• 33:44
  Speaker 1: has given a lot of extra wind in the sales
• 33:48
  Speaker 1: of the regulators who believe that they have a responsibility
• 33:51
  Speaker 1: to protect users of social media from the efforts of
• 33:56
  Speaker 1: Google and Meta. So the jury verdicts are already being
• 33:59
  Speaker 1: pointed to as a motivation for moving additional regulation forward.
• 34:04
  Speaker 1: That's going to happen at both the state and the
• 34:06
  Speaker 1: federal level. Will it be enough to get something through Congress,
• 34:11
  Speaker 1: I don't know, but I should warn your listeners that
• 34:14
  Speaker 1: we should be nervous about whatever will make it through Congress.
• 34:17
  Speaker 1: We should not assume that Congress cares about actually benefiting
• 34:21
  Speaker 1: us as constituents in regulating social media, and we should
• 34:25
  Speaker 1: not assume that any outcome of that regulatory process will
• 34:28
  Speaker 1: actually in fact make our lives better. And so I
• 34:32
  Speaker 1: know there's such an antipathy towards social media, such a
• 34:35
  Speaker 1: desire for some kind of regulatory magic wand that will
• 34:39
  Speaker 1: make life better, But that's not at all what we're
• 34:41
  Speaker 1: likely to get from Congress. And as a result, I
• 34:44
  Speaker 1: encourage your listeners to be vigilant here. Congress if it acts,
• 34:47
  Speaker 1: might be doing something in the name of trying to
• 34:50
  Speaker 1: advance these interests, but actually with a very different agenda
• 34:53
  Speaker 1: that is not necessarily in the interests of its constituents.
• 34:57
  Speaker 2: Well watch what if anything happens in Congress. Thanks so much, Eric.
• 35:01
  Speaker 2: That's Professor Eric Golman of Santa Clara University Law School,
• 35:06
  Speaker 2: And that's it for this edition of The Bloomberg Law Show.
• 35:08
  Speaker 2: Remember you can always get the latest legal news on
• 35:11
  Speaker 2: our Bloomberg Law podcasts. You can find them on Apple Podcasts, Spotify,
• 35:15
  Speaker 2: and at www dot Bloomberg dot com, slash podcast Slash Law,
• 35:21
  Speaker 2: and remember to tune into The Bloomberg Law Show every
• 35:23
  Speaker 2: weeknight at ten pm Wall Street Time. I'm June Grosso,
• 35:27
  Speaker 2: and you're listening to Bloomberg