Law professor weighs in on social media lawsuit that includes Fort Mill and Clover schools
Loneliness, anxiety, body image issues and even just simple distraction — there’s plenty of concern about what social media is doing to kids. Fort Mill schools and Clover schools recently joined other school districts nationwide in a lawsuit against social media companies that alleges the companies’ platforms are harming students’ mental health.
“We are experiencing a variety of mental health issues,” David Duff, attorney for Fort Mill schools, said during a recent school board meeting. “Everything from anxiety, depression, sleeping disorders, eating disorders, body image problems.”
The suit names Meta, which owns Facebook and Instagram. It also names Google, which owns YouTube, and the parent companies of TikTok and Snapchat. Joining us now to offer his perspective is UCLA law professor and First Amendment expert Eugene Volokh.
Marshall Terry: School systems here are citing damages they say they've incurred, like having to hire more mental health professionals to help out depressed students. Does the school district have a legal argument here?
Eugene Volokh: Not a winning one, I think. Social media is protected by the First Amendment — the way that movies are, the way that books are, the way that songs are. The government can't sue, saying 'Oh, people are doing bad things because they're spending too much time on social media or because they're seeing bad information or bad ideas on social media' any more than they can sue saying 'Oh, people who read this book get violent ideas from it,' or 'people who play these video games get desensitized to violence.'
The First Amendment precludes these kinds of lawsuits before the social media era. There've been such lawsuits. People have said, 'Oh, this song helped drive my child to suicide.' Those kinds of claims are thrown out. There have been claims saying that people have committed essentially copycat crimes of things that they saw on television or in movies. Those have been thrown out — all on First Amendment grounds. And the analysis is the same, whether the material is aimed at minors or whether it's aimed at adults.
Terry: Well, ultimately, do these social media companies have any legal responsibility for how kids use their products?
Volokh: Under current law, I think they have no more responsibility than a song producer has responsibility for what people might or might not do based on hearing some song that may make them angry or depressed or whatever else.
Now, you can imagine Congress enacting some statute that provides very specific things that platforms need to do, maybe requiring certain warnings or maybe requiring certain limitations on access by children. But you can imagine some statute that's particularly closely focused on some particular harm and is backed by particular evidence that might be upheld, but some just general standard that the platforms ought to have done better in the eyes of some judge or some jury somewhere — that's not something that's constitutionally permissible.
Terry: Does the fact that they're minors, students in school, impact this case? I'm wondering if schools have more power to regulate what students do and if that gives them greater standing to sue in a situation like this.
Volokh: Well, schools do have more power to restrict what their students do, at least in school. They can restrict, for example, disruptive speech or, for that matter, vulgarities in school. They might even have some more power over their own students outside school. So they may threaten to suspend or even expel a student, maybe. But all of that stems from the school's authority over their own students and the theory is, we can control what students say. That does not extend to the ability to control what radio stations might say or what law professors might say or what social media platforms might say, that might be heard by students and might be acted on by students.
You can imagine, for example, a school saying to a student, you know, you can't sing some vulgar song at school because we have a no vulgarity rule at school, it doesn't give it any right to stop music companies from distributing vulgar songs on the theory that when children hear them, they're going to sing vulgar things. The same thing is true with regard to things much worse than vulgarity, such as advocacy of violence or various other things. Schools' power over their students does not extend to power over authors or singers or publishers or social media platforms.
Terry: Can schools legally ban use of social media while on school property?
Volokh: It might be constitutional. Certainly, schools could restrict what students do in class. One would hope that they should be paying attention to the lesson and not using Snapchat, let's say. But they might be able to restrict even the use of social media over lunch, let's say, or something like that. Again, it's not completely clear, but you can imagine some such rule being upheld. But again, that stems from the school's power, in that case, as educator and property owner to control what happens on its own property. That doesn't give it the power to control, through threat of massive financial liability, what other speakers or other publishers do far outside of school property.
Terry: One parallel I'm seeing is with lawsuits against Juul, the maker of vaping products. Their company has agreed to pay more than $1 billion to local governments and school districts to settle claims that it illegally marketed addictive tobacco products to kids. Do you see similarities there with so-called addictive social media products?
Volokh: There is no constitutional right to vape, certainly not for children. There is a constitutional right to speak or freedom of speech and of the press, which includes communicating through electronic technologies and providing platforms for that. And again, the Supreme Court has made clear that right extends to children. The violent video game case shows that. California passed a law, not even banning violent video games for children, but just prohibiting children from buying violent video games themselves. Basically, they would have to have their parents buy them. The Supreme Court struck that down because it concluded that, even minors have First Amendment rights. The First Amendment protects social media platforms. It doesn't protect vaping companies.
Terry: So these school districts are likely to face some legal obstacles in court with this social media lawsuit. But what about the court of public opinion? Is there a point in doing this beyond just recovering damages?
Volokh: You know, it's an interesting question. I'm not a professor of public opinion. I'm a professor of law, so I can't tell you to what extent this is going to have much of an influence on social media platforms. One constraint, of course, on the kind of influence it could have, is just competition, right? Imagine Facebook says, 'Oh, all right, we're just now going to allow children to access certain kinds of materials on our platform.' If those materials are constitutionally protected, then children may very well say, 'Okay, fine, we'll just go use some other platform.' So it's always difficult to try to impose censorship schemes through mere public opinion because there is the opportunity for competitors to come up and provide what other entities don't provide.