Latest / The Jon and Marc Podcast / The Social Media Reckoning: Inside the Historic Trial with Matt Bergman

Transcript

The Social Media Reckoning: Inside the Historic Trial with Matt Bergman · The Jon and Marc Podcast

• 0:00
  Justice is going to have to prevail.
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  The courts are not going to allow this practice to continue
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  in which these companies can hurt kids with impunity.
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  When you are on social media, you are not the customer, you
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  are the product. They are selling you.
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  They're selling your eyes, they're selling your engagement
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  to advertisers, and they keep you online not by showing you
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  what you want to see, but by showing you what you can't look
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  away Welcome to a special edition of
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  the John and Mark podcast. Today we're joined by the
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  founder of the Social Media Victims Law Center, Matt
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  Bergman, who I've known for about four years since he
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  originated this social media addiction litigation.
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  We're here in Los Angeles at the beginning of the social media
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  addiction trial. We had Snap and TikTok settle
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  out a couple weeks ago. We've still got Meta and Google
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  who are still participating in the trial.
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  Today was the opening arguments from YouTube and the beginning
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  of the plaintiffs experts. Matt, thank you so much for
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  joining us. We really appreciate it.
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  It's good to be here, Matt, for those who don't understand what
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  this litigation is actually about, can you help explain to
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  them? Like what is it actually that
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  the claims are against Meta and Google?
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  The claims are that they have designed social media products
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  to be addictive to kids, that they've done so knowing that
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  their platforms cause severe mental health harm or worse to
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  kids. They keep doing it because they
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  make their money selling advertising to kids, and if kids
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  suffer, so be it. That is the business rationale
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  that these companies have followed and the reason why for
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  the last four years I've been chasing this white whale.
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  When you started this back in late 2021, did you ever think it
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  would get to where we are today? Yeah, but that's just because
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  I'm a plaintiff's lawyer and I'm optimistic by nature.
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  And I just felt like when I learned about what these social
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  media companies are doing to kids, how they have exploited
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  Section 2:30 to avoid the kind of responsibility that every
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  other company in America follows, I just thought at some
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  point, justice is going to have to prevail.
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  The courts are not going to allow this practice to continue
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  in which these companies can hurt kids with impunity.
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  How did you conceptualize this from a concept to going up
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  against the traditional 230 claims and then eventually like
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  bringing it to where it is today?
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  Well, I was a asbestos plaintiffs lawyer for almost 30
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  years. And a damn good one for those of
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  you that don't know Matt's history prior to this.
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  I learned a lot, and I learned how product liability can be
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  adapted to changing technologies and changing legal theories.
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  And I understood and learned, through some victories and some
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  spectacular defeats, how to overcome legal obstacles on
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  behalf of meritorious plaintiffs.
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  And that if you keep working and fighting hard enough, at some
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  point the legal system will yield to the cries of justice.
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  So as I learned about social media and the carnage that it is
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  continuing to inflict on vulnerable kids, as we heard
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  from early whistleblowers about the conscious disregard that
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  these companies have for basic principles of safety and social
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  responsibility, I thought that I'd apply my experience as a
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  product liability lawyer in devising a legal strategy that
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  would get past Section 2:30, which theretofore had prevented
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  plaintiffs from even getting started in trying to hold these
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  companies accountable. The judge gave some pretty
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  explicit instructions a few days ago to the jury about this case
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  not being about the content of what is on these platforms, but
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  about the product itself. Do you think that that message
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  was heard by the jury? Do you think they understand it,
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  that it's not really about what is actually on the video or the
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  photo, but it's about the product itself?
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  You know, I have found that juries listen very carefully to
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  courts instructions and generally try very hard to
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  follow them. I think that it is a challenging
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  distinction because the harms in many cases emanate from content
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  as a direct result. But content has fed the kids
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  through defective algorithms and dangerous products.
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  You know, I think that there will be a lot of needle
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  threading throughout this trial. The court is going to work very
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  hard, the lawyers are going to work very hard.
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  But you know, we are all plowing new ground legally.
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  I think that inevitably these issues are going to have to be
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  resolved at the appellate level and that all, you know,
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  plaintiffs and defendants and the court are doing their best
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  to establish a coherent and logical frame of reference for
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  the courts of appeal to ultimately determine how these
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  companies are held accountable and for what.
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  If the content that was portrayed on these platforms was
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  all teddy bears and Bible verses and warm hugs, but the product
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  still existed the way that they exist today, how would that
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  change the the narrative? Or would it not?
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  Well, it depends. The platforms are designed to be
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  addictive, and they are addictive by utilizing operant
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  conditioning and artificial intelligence to identify the
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  things that trigger the greatest dopamine response in young
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  people. And if some people's dopamine
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  response is triggered by teddy bears and moonbeams and they
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  spend 891011 hours a day online, when they, you know, at the
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  expense of their social development, their intellectual
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  development, their physical health, then that is a problem.
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  And addiction in and of itself is a harm.
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  Unfortunately, we know that what kids are fed is not teddy bears
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  and moonbeams. It's suicidal content telling
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  them to walk in front of trains or take shotguns and shoot their
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  heads off or engage in eating disorders or horrific and
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  reckless challenges. And they do that because what
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  triggers the dopamine response is material that is discordant
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  typically. And in order to maintain the
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  dopamine level, the platforms as designed have to show kids more
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  and more extreme material to get the same dopamine response, to
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  attain the same level of engagement, to be able to sell
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  the same level of advertising, to make the same amount of money
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  at. Their core?
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  What is the business model of these platforms?
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  When you are on social media, you are not the customer, you
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  are the product. They are selling you.
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  They're selling your eyes. They're selling your engagement
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  to advertisers. Based on the sophisticated
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  technology, they are able to provide advertisers with highly
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  targeted opportunities to address the exact demographic
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  group, the exact cultural group, the exact customer that they're
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  looking for. But the more they can keep you
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  online, the more money they make because they sell the most
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  advertising. And they keep you online not by
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  showing you what you want to see, but by showing you what you
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  can't look away from. They keep you online by
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  utilizing gamification through endless scrolls and likes and
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  streaks and other features that are designed to exploit the need
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  for social acclaim that adolescents have and to keep
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  them engaged long after they want to stop and go to bed or do
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  something else. We were writing the elevator up
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  to the studio and you were telling me about today you had
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  your addiction expert who is speaking in court.
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  What are some of the things that they pointed out that would make
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  the common person gasp about the addiction that these platforms
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  are actually enabling? And this was Doctor Anna Lemke,
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  a psychiatrist who's head of the addiction medicine program at
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  Stanford University, author of the very prominent bestseller A
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  Dopamine Nation. It's been translated into 35
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  different languages and Doctor Lengthy talked about a couple
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  things that I think was unusual for people. 1 is that a social
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  media addiction has the same neurologic components as other
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  forms of addiction, like alcohol or tobacco or drugs.
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  That it affects the dopamine response in the brain in the
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  same way that a susceptibility to a social media addiction is
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  universal across all kids, whether they be kids that have
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  had a troubled upbringing or a pristine upbringing, but that
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  kids who are troubled either through the OSES or through
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  family challenges are more susceptible to addiction.
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  That there is a bilineal relationship between mental
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  health harms and mental health vulnerability and social media
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  addiction. That they are mutually
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  reinforcing of each other. And finally, that these
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  platforms do not exist in their present form by accident, but
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  rather by design. That the psychological
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  principles of operant conditioning, the neurologic
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  principles of dopamine extraction have been self
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  consciously incorporated into the design of the social media
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  platforms to make them addictive by design and by intent.
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  How could there even be a defense against that?
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  First and foremost, there's Section 230, a statute enacted
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  in 1996, when Netscape, if any of you remember, was the largest
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  browser in the world, when Google didn't exist, when there
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  was no social media, and when Mark Zuckerberg was in junior
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  high. And that statute was designed to
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  make it easier for companies to protect kids and to ensure that
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  the nascent Internet I was allowed to develop.
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  Unfortunately, it was interpreted far beyond either
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  its statutory language or legislative intent.
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  In a time when there was a real social narrative that social
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  media was a great thing, that it was going to bring people
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  together, that it was a communication thing, and that
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  these companies were really great companies founded in
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  people's garages. And the legal rubric took on
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  this hagiographic view of social media that is clearly belied by
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  its current incarnation. But first and foremost, the
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  companies say we're immune. We can do whatever we want.
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  So you had court opinions involving kids that were
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  sexually trafficked, minors who were sexually trafficked on
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  Backpage. And the court said, well, that's
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  because it's a social media platform.
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  It's immune from any regulation, people who were bullied, people
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  who were sent in very dangerous directions or connected with
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  predators. And again, time and time again,
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  the early holdings were that those were immune.
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  So in in answer your question, how do they justify it?
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  They say we can do whatever we want, We're immune.
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  They have some other excuses that they make as well once they
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  get over their hurdle. But it's eminently clear to me,
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  and I say this after having had access to years of discovery, to
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  all of the internal documents of these companies, that you really
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  don't see much concern about liability.
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  You see in these companies a lot of individuals of conscience who
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  are saying, Gee, what are we doing to kids?
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  Why are we doing this? Our platforms are dangerous.
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  We should change it and in time and again.
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  Ultimately, when the decision comes down to safety or
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  engagement, IE profit, they always pick profit.
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  Is that. From the top.
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  Down. It is from the top down.
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  Literally. You know when Arturo Behar sends
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  a memorandum to Mark Zuckerberg saying 1/3 of youth every week
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  receive sexually explicit content, unwanted sexual content
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  from adults, and the decision is made not to change the
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  notification features or not to change the public by default
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  features? Yes, they are made from the top
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  down. This is not an accident.
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  And what is particularly tragic is that these safety
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  improvements could be easily implemented by these companies
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  with minimal effort in a week. This is not a question of a
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  product that has inherent danger.
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  Some things are just inherently dangerous.
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  That's not true for social media.
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  You could make social media 80% safer with well known, easily
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  implementable changes that could take place in a matter of days.
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  What? Are some of those things.
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  Turn off the algorithms. Show kids what they want to see,
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  not what they look away from. Does that mean that some kids
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  are going to go online and find some bad stuff?
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  Sure. That also means that a, you
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  know, a young woman who's interested in diet is not going
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  to be force fed material promoting emaciated bodies and
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  anorexic behavior. A young African American man
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  interested in music is not going to be put down rabbit holes
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  promoting gang violence. An individual who is looking for
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  affirming content after suffering a breakup is not sent
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  suicidal content. All this stuff could be done if
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  the platform simply wanted to focus on the quality of the
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  online experience as opposed to the level and extent of
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  engagement. Easy.
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  Another change would be agent identity verification and make
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  sure that people are who they say they are so that you don't
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  have a, you know, 47 year old pedophile posing as a 13 year
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  old boy trying to convince another 13 year old girl to
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  provide a revealing pictures of herself.
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  If adults want to hook up on Tinder, they got to provide
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  identity verification. They prove you are who you say
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  you are. So why don't we provide kids
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  with the same level of protection as we do adults who
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  are looking to hook up? Limiting the time kids are
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  online all hours of the day and night.
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  Kids receive push notifications at 3:00 in the morning.
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  We know that first and foremost, any more than two hours a day of
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  social media is diverting kids from other, more productive
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  activities. We know that sleep deprivation
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  is in and of itself A cause of mental health and physical
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  distress. So limit the hours.
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  Don't hook up people and strangers.
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  If someone wants to actually become your friend, make sure
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  there's someone you actually know or someone you actually are
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  connected with, as opposed to relying on the need for a social
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  acclamation of that young people have.
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  And finally, provide basic warnings.
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  Provide parents and kids with the sane appreciation of the
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  risks that they're undertaking when they go online.
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  Those simple changes wouldn't solve all the problems, but we
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  wouldn't be here today if they'd made them.
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  Matt, do you think the shifting laws internationally preventing
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  children, you know, in Australia, I think it's under
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  the age of 16, Yeah, right. Do you think that is an approach
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  that could potentially work in the United States?
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  I think 16's too young. I think 18's a better age.
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  But yes, kids are most vulnerable at their early, early
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  prepubescent ages and certainly in the cases that we have seen,
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  the most extreme versions and examples of social media
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  addiction take place among kids who get online very, very young.
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  Also, banning the cell phones in schools has had a great impact.
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  I mean, just ask any school teacher.
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  You've become the architect of this new phase of mass torts
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  that are targeting technology platforms in a way that
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  attorneys used to target pharmaceuticals, drugs, medical
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  devices, and we've seen the onset of litigations like
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  Roblox. Do you see the same parallels
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  between the Roblox litigation, which has just recently been
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  consolidated, and what you're dealing with here in the social
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  media addiction litigation? Absolutely.
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  We have a number of Roblox cases in the MDL which we may seek to
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  transfer now that there's a consolidated proceeding.
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  But yes, it's a somewhat similar phenomenon.
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  I think that each platform has its own particular dangers.
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  Roblox in particular purports to be a platform for little kids,
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  little kids, and yet it provides a vehicle for pedophiles to
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  connect with them. And we've had a number of those
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  cases. But, you know, I think what you
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  see as a new technology develops, there's good and
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  there's bad to the technology. And what the civil justice
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  system is supposed to do when it's working is instill in
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  companies the economic incentives to design and produce
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  and sell safe products as opposed to dangerous products.
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  So this is not a question of stifling technological
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  development. This is simply a exercise in
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  what an economist would say, internalizing the cost of
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  safety. What do you think is going to
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  happen tomorrow when Mosseri is on the stand and next week when
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  Zuckerberg's on the stand? Well.
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  We are very fortunate that our trial lawyer, Mark Lanier, is
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  the foremost trial lawyer in America.
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  I think his record speaks for himself.
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  I think that they will be held and called to answer for their
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  conduct in their documents. And unlike when they testify in
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  Congress, the questioner doesn't have to stop at 5 minutes and
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  pass the baton just when things are getting good.
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  This is a historic moment, and I really want to stress that for
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  me, the fact that we have the opportunity to present our case
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  to a fair and impartial jury is in and of itself a tremendous
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  victory. I've tried enough cases to know
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  that you don't win them all, and juries appropriately hold the
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  plaintiffs to their burden of proof.
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  But for so long, families have been deprived of that basic
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  right, the basic opportunity to present their case to a jury and
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  let the chips fall where they may.
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  That's what we're trying to do. The Social Media Victims Law
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  Center brand that you created has become synonymous with this
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  litigation in many ways and has continued to evolve.
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  So you've had lawsuits against other platforms that have
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  resolved outside of what we're dealing with here today.
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  If you look at what happened in Australia, there was an
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  immediate spike to alternative platforms as soon as the ones
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  that got banned were locked down.
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  Now that subsided and then people moved to VPNs and they're
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  trying to access the platforms from outside Australia.
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  There's all these sort of circumventions.
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  What do you think the next thing is that parents need to keep
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  their eyes on outside of the known harms that we're aware of
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  today? Well, the AI chat bots are
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  clearly dangerous to kids. And we have over the last year
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  ventured into that litigation. We recently secured a
• 19:39
  consolidation of the ChatGPT litigation and are looking at
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  other AI chat bots. So I think that's a clear and
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  present danger to kids. Gambling we're seeing as a
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  particular danger, particularly for young men.
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  The prediction markets have just exploded over the past, you
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  know, six months. It was never easy to be a
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  parent. It certainly was never too easy
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  to be a parent of a teenager. I think it's a really.
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  Challenging time to the extent that parents first and foremost
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  lead by example and not be on their phones all the time.
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  It's hard. It's hard really where we all
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  yeah, I mean, I think we need to try to to the extent possible,
• 20:21
  restore what professor John Height calls a a play based
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  childhood versus a screen based childhood.
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  Parents need to encourage their kids to put down their phones
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  and to go outside and play, or to engage and play with board
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  games or put models together. Go out on a date, go outside, go
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  ride their bikes. I mean, we've become on one hand
• 20:43
  so overprotective of kids while at the same time exposing them
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  to risks and dangers that our orders of magnitude greater than
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  anything they'd face in the quote UN quote real world.
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  Just 'cause they're still visible in front of you doesn't
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  mean the things that they're looking at on their devices are
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  any more safe than the harms that they can get outside their
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  front. Right.
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  We we're afraid that if we let our kid go outside and play that
• 21:06
  their kids going to be molested. And the fact that, you know, a
• 21:08
  pedophile in Nigeria can be sex dorting your child in well, that
• 21:14
  child is in the next room. A number of cases leading to
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  suicidal outcomes is incongruous, but is really the
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  real risk that kids face. To some extent, it's societal.
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  I think that, you know, the polarization that we're
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  experiencing is somewhat a product of that.
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  And so I just, I think we need to get back to as parents
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  encouraging kids to have more human relationships, more face
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  to face relationships, more unstructured play time, more
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  risk taking and less time online.
• 21:49
  There are cases going on now in parallel to this one you've got.
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  You've got the cases from the school districts and from the
• 21:59
  individual state attorney generals that are against the
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  social media platforms. How did those differ, if at all,
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  from this MDL? The school district in the state
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  AG cases are encompassed within the federal MDL.
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  The first cases that are going to go to trial in the federal
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  MDL are going to be state cases this spring.
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  They rely on a similar legal theory and they rely on a
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  similar nucleus of tortious conduct, that being the
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  intentional design of unreasonably dangerous
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  platforms. But the harms alleged are very
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  different, and so I think it's different types of harms
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  inflicted on different types of populations from the same
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  underlying misconduct. How long do you think this has
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  been going on with these platforms?
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  Was there an inflection point where they made the decision
• 22:55
  that now we're really going to focus on profit over safety?
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  Or has this just been inherent in the platform since their
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  origination? It looks like it was not
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  inherent from the origination. Particularly like with YouTube,
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  they went from a model when they wanted to expand to a, you know,
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  a billion hours of use per day. It wasn't right away.
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  And if you want to give them the benefit of the doubt, and I'm
• 23:19
  not sure I do, but if you do, you could say, well, they
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  weren't quite aware how these algorithms work.
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  There's some truth to that. I mean, it really is like a
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  black box. Once they saw what their
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  platforms were doing, they had an, as you say, an inflection
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  point. You can make a decision to make
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  it safer, or you can make a decision to keep reaping the
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  enormous profits that you're making through these defective
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  designs. Sadly, they chose the latter.
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  If you go back and you know, re watch the social network or kind
• 23:50
  of think about the timeline of Facebook's evolution from
• 23:53
  Harvard dorm room to now facing you in court, at some point
• 23:58
  Facebook went public. I think of that as like just
• 24:02
  mentally. Now your responsibility is not
• 24:06
  to the users of your platform. Now your responsibility is to
• 24:08
  your shareholders and that to me, regardless of when these
• 24:15
  things actually came out in public or when they were
• 24:17
  documented, now they are responsible to their quarterly
• 24:21
  reports, they're responsible to their fiscal year profitability
• 24:24
  and they're responsible to their shareholders and making sure
• 24:26
  they're continuing to grow their valuation year over year over
• 24:31
  year. That is just an inherent
• 24:33
  conflict of interest, isn't it? I don't think so.
• 24:35
  I think it's a little different than that.
• 24:37
  I don't believe these are companies in that sense.
• 24:39
  You know, when I'm a Tour Company, you have shareholders
• 24:42
  that hire and fire a board of directors, a board of directors
• 24:46
  that hires and fires a CEO, a general counsel with a fiduciary
• 24:49
  duty to speak the truth to the board of directors.
• 24:51
  These companies, for the most part, aren't function that way.
• 24:55
  Mark Zuckerberg owns 658% of the voting stock of Meta.
• 24:59
  The two founders of Snapchat own 98% of the voting stock, so you
• 25:04
  don't have kind of the normal checks and balances that a
• 25:07
  mature corporation has. Look, I am pro capitalist.
• 25:10
  There is nothing wrong and there's a lot right with
• 25:12
  companies making good products and making good money and making
• 25:15
  profits for their shareholders. I'm all for that.
• 25:18
  But what I'm against is when you have this skewed liability
• 25:22
  framework where the rules of the game that every other company
• 25:26
  has to follow are not applied to social media, not applied to
• 25:31
  high tech. That's where the problem lies.
• 25:34
  It's not the profit motive. And and also where you don't
• 25:37
  have the kind of maturity of a company with the typical checks
• 25:42
  and balances that a company has, where you have one or two or
• 25:45
  three people that are basically the board, the CEO, and the
• 25:50
  general counsel all wrapped in one.
• 25:52
  That's not the way corporate structures are supposed to be.
• 25:55
  The corporate form has a very important role in our capitalist
• 25:59
  system, but this is a perversion of that role.
• 26:02
  This is what a economist would call an externality, because the
• 26:07
  costs of these platforms are not borne by the the social costs
• 26:12
  and the economic costs are not borne by the platform and by the
• 26:15
  company itself. And the skewed deviation from
• 26:18
  capitalism as we know it, and capitalism as it exists in
• 26:22
  democratic societies such as ours.
• 26:24
  What do you want to say to attorneys who are thinking about
• 26:29
  the next thing that they come up with?
• 26:32
  You had this idea. You bored this litigation.
• 26:35
  If they come up with a concept, how did they take that concept
• 26:38
  and appropriately vet it to determine whether or not it can
• 26:41
  become even close to what you were able to do with your
• 26:45
  concept of the social media addiction?
• 26:47
  I think you got to believe it. As we'd say in the addition,
• 26:50
  Yerkishkis, it's not about thinking of the next new thing
• 26:55
  or the next way to make money as a lawyer.
• 26:57
  I mean, we might make money doing this, we might not, but
• 27:00
  it's about when you have this epiphany of injustice and a path
• 27:07
  forward to alleviate it. I always regretted that I was
• 27:12
  too young to have been a civil rights lawyer in Mississippi in
• 27:15
  the 60s. I find in this work the same
• 27:19
  moral clarity that existed in the civil rights movement and in
• 27:24
  the civil rights cases. And just as when you had a legal
• 27:28
  system that subjugated people of color to deprivation and
• 27:33
  discrimination and humiliation, having to drink out of separate
• 27:37
  drinking fountains or ride in the back of buses and and you
• 27:41
  said, how can a legal system tolerate that?
• 27:44
  How can that be constitutional? How am I going to figure out how
• 27:48
  to change that? Well, when you have a system
• 27:53
  where companies can send suicidal videos to a 16 year old
• 27:57
  boy telling him to jump in front of a train and he jumps in front
• 28:01
  of a train and his parents are bereft of any legal remedy.
• 28:05
  And the company said, sorry, your son died, but we're not
• 28:08
  responsible. To me, that has the same moral
• 28:12
  clarity in the same Clarion call that a legal system cannot abide
• 28:19
  providing that level of immunity, providing that kind of
• 28:23
  injustice to exist. So I would tell people, instead
• 28:26
  of looking for what's the next great class action, what's the
• 28:30
  next great thing to be able to deploy your legal talent?
• 28:35
  And I would say that when your sense of justice is so offended
• 28:46
  by what you see, when the righteousness of your clients is
• 28:51
  so clearly juxtaposed against the benevolence of your
• 28:55
  opponents, then you know you've got something.
• 28:58
  It might turn into something huge, it might not.
• 29:02
  But at least you'll have honored your oath as a lawyer and
• 29:10
  practice law at its most essential and rewarding and
• 29:17
  meaningful level. Give me chills, Matt.
• 29:21
  I think we are at the precipice of a real change.
• 29:26
  And you are the engine that is pushing that forward.
• 29:30
  And I thank you as a father for everything that you're doing to
• 29:33
  help push that forward and enact change in our society and make
• 29:37
  sure that this place that we all call home is a little bit safer
• 29:41
  for the next generation. Thank you, everybody, for
• 29:44
  watching. This is this very special
• 29:46
  edition, the John and Mark podcast with Matt Bergman.
• 29:49
  Trial continues tomorrow.