Can America Regulate Social Media?

Napoli Shkolnik
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Napoli Shkolnik

When the CEOs of the biggest social media companies were brought before Congress in January to answer for the devastating effects of social media on young people, Mark Zuckerberg turned heads by turning his own and apologizing to a gallery full of parents who had lost their children.

Moments later, in his opening statement, he said, “The existing body of scientific work has not shown a causal link between using social media and young people having worse mental health.” It seemed, on its face, contradictory.

And, in fact, it’s false. According to recent studies, 33 percent of girls aged 11 to 15 feel addicted to social media, and more than half of teens say it would be hard to give it up. 46 percent of teens aged 13 to 17 say social media has made them feel worse about their appearance. 64 percent of teens report they’re exposed to hate-based content either “often” or “sometimes.” And nearly 60 percent of girls say they’ve been contacted in a way that makes them feel uncomfortable.

Overwhelmingly, the evidence shows that social media use is implicitly dangerous, and it’s more dangerous for those who are young and impressionable. In response, Florida and other states are attempting to ban social media use for younger teens. New York Mayor Eric Adams has declared social media a public health hazard. And numerous efforts are underway across the country to regulate or restrict the platforms in some way.

But regulating social media raises prickly legal issues, which makes it uniquely difficult to craft regulations that will stand up in court. Indeed, in Reno v. ACLU the US Supreme Court found that, in comparison to traditional media, laws that restrict content on the Internet can violate protected speech because so much content on the Internet is created by users.

On social media, all the content is created by users and falls under the First Amendment’s speech protections. As publishers, meanwhile, social media companies are currently protected by Section 230 of the Communications Decency Act, relieving them of most responsibility for the content on their platforms.

In many ways, though, it’s not the content itself that makes social media so engaging, and in some cases addictive. It’s the way the platforms customize the content each user sees, based on massive amounts of data ranging from obvious data points like “likes” to less obvious ones like how users scroll through their feeds or whether they pause or fast forward a video. That data allows the platform to use customization models powered by machine learning to serve up content the customer wants to see. Social media platforms use that power to achieve one goal: keeping users engaged.

Although protecting free speech and publishers’ rights are important, there’s no inherent value in giving technology companies the right to develop an interface that’s engineered to be addictive. Although time (and the courts) will tell, that may be a way to rein in Silicon Valley and reduce the harms caused by social media.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations. Attorney Advertising.

© Napoli Shkolnik

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