Meta has endured a lot of scandal and controversy over the years, but its status as one of the most valuable companies in the world was never really in danger. Now, though, Mark Zuckerberg’s company may be facing an actual existential threat. Following a series of whistleblower revelations about its dubious methods of marketing itself to children, the company faces a barrage of lawsuits from states, schools, and individuals. Meta recently lost two such cases in state court, but those were small potatoes compared to the federal trial that began last week in California, brought by that state alongside Colorado, Kentucky, and New Jersey. (The four states were trimmed from 29 that filed suit.) The states, who are seeking $200 billion in damages, argue that Meta intentionally designed features on two of its blockbuster products — Facebook and Instagram — to be addictive to children, and should be liable for the harm its platforms caused as a result.

The trial comes at a precarious moment for tech companies in the court of public opinion, amid a political backlash to AI data centers, social media addiction, and billionaires in general. But is the states’ argument against Meta actually up to legal snuff? And how might it presage legal action against other Silicon Valley giants, some of whom are already facing similar lawsuits? For perspective on these questions, I spoke with Stuart Benjamin, a professor at Duke Law School who is also the co-director of the Center for Innovation Policy there. Benjamin is an expert in both telecommunications and First Amendment law, two areas that are front and center in the California trial.

You have spoken about the challenges a case like presents for the plaintiffs, considering Meta’s First Amendment protections. What are the main obstacles?In a case called Moody v. NetChoice two years ago, the Supreme Court said that prioritization of content is speech for First Amendment purposes. And any regulation of content, including tort liability based on the content of someone’s speech, is subject to strict scrutiny. There has been one case in the history of the Supreme Court in which they have upheld a regulation on strict scrutiny grounds. So this review is, in theory, survivable. In reality, it’s basically fatal.

So what does this mean? It means that when Facebook or New York Magazine decides to prioritize some things on its website above other things, or some comments above others, that’s all treated as speech for First Amendment purposes. So one significant hurdle right off the bat is that there’s a serious First Amendment barrier to any attempt at finding social media companies liable for prioritizing speech that a lot of people, myself included, think might be harmful. That’s one piece of it. A second piece is Section 230, enacted in the early days of the internet, which says that you, as an information service provider, as a social media company, can’t be liable for third- party speech you host. So put those two things together.

And there are already big challenges for the states. I think that what upsets people the most about social media companies is the content they are showing to us, and the rabbit holes they are happily leading us down. So not just brain rot, but studies have found that if you do a search on some of these services for something that is mildly conspiracy related, the autoplay will just take you further and further down that rabbit hole. The point I’ve been making is that I don’t think those arguments are going to fly, to use a technical term, in light of the First Amendment and Section 230.  And in fact, the judge in this case has said there’s a bunch of arguments that are simply barred by the First Amendment and Section 230, just flat-out barred by........

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