DV Journal

Bucks County officials filed a class action late Tuesday over the harm they claim Facebook, Instagram, Snapchat, TikTok, and YouTube are inflicting on kids. The move makes Bucks the first county government entity in the nation to file that kind of litigation.

“It’s very personal to me,” said Solicitor Joseph Kahn, who noted he is also a parent. “What this lawsuit addresses is a mental health crisis that severely impacts children everywhere, particularly in Bucks County. Like parents everywhere, I have been wondering, what am I going to do about this?”

Kahn was joined by Bucks County District Attorney Matt Weintraub, Commissioners Chair Robert Harvie, and Commissioners Diane Marseglia and Gene DiGirolamo.

The lawsuit, filed in federal court in San Francisco claims, “Youth mental health problems have advanced in lockstep with the growth of social media platforms deliberately designed to attract and addict youth to the platforms by amplifying harmful material, dosing users with dopamine hits, and thereby driving youth engagement and advertising revenue.

“Defendants Facebook, Instagram, Snap, TikTok, and YouTube all design, market, promote, and operate social media platforms for which they have especially cultivated a young audience. They have successfully grown their platforms exponentially over the past decade, from millions to billions of users, particularly children, and teens.”

And those young people have suffered, the lawsuit alleges, raising costs for county taxpayers who pay for their mental health and other services.

“Bucks County residents have borne painful witness to all of this, firsthand, to devastating effect,” the lawsuit says. “For instance, in October 2022, a 15-year-old boy in Bucks County was arrested after threatening to ‘shoot up’ Central Bucks High School West via a Snapchat message. The boy also used TikTok to share videos of other mass shootings.”

Meta, the parent company for Facebook and Instagram, released a statement touting its efforts at promoting responsible social media use.

“We want teens to be safe online,” said Meta’s Global Head of Safety Antigone Davis. “We’ve developed more than 30 tools to support teens and families, including supervision tools that let parents limit the amount of time their teens spend on Instagram, and age verification technology that helps teens have age-appropriate experiences.

“We don’t allow content that promotes suicide, self-harm, or eating disorders, and of the content we remove or take action on, we identify over 99 percent of it before it’s reported to us. We’ll continue to work closely with experts, policymakers, and parents on these important issues.”

Not good enough, Bucks County officials say, pointing to data from the Centers for Disease Control and Prevention showing a surge in depression and suicidal thoughts among American teens between 2011 and 2021. That coincided with the explosion of social media use by teens.

“A Pew Research Study found that almost half of U.S. teenagers aged 13 to 17 say they are online ‘almost constantly,'” the lawsuit reads.

The county is asking for monetary damages and an injunction against the social media companies, officials told DVJournal during Wednesday’s press conference.

The county has a long history of providing mental health services to children and teenagers paid for by taxpayers. The lawsuit asks the court to make the social media companies pay, Kahn explained, adding the companies violate Pennsylvania’s fair trade practices law.

Bucks County isn’t the only government entity to sue social media companies over the alleged harm their products inflict on users. The Seattle public school system is suing several large social media companies. Utah Gov. Spencer Cox has announced plans to sue as well.

Given the extremely deep pockets of social media companies like Facebook and YouTube, what chance does Bucks County have of winning this suit?

Bucks County District Attorney Matt Weintraub said, “I do liken it to a David versus Goliath situation, where we’re David. We’re taking on these enormous companies…They’ve not only taken advantage of our children, but they’ve preyed on our children.”

The mental health agencies have a “literal and figurative line out the door,” said Weintraub. “And it’s filled with our young people. We intend to win. We intend to stake our claim.”

Villanova law Professor and Vice Dean Michael Risch said the David vs. Goliath comparison is overly optimistic.

“David at least had the stone, right? But this David has nothing. The sling is empty,” Risch told DVJournal.

Risch pointed to Section 230 of the Communications Decency Act which protects internet providers from just this sort of liability for the content that third parties post on their sites. A case recently heard by the U.S. Supreme Court claimed that Google is liable for terrorist videos, and the high court appeared unlikely to rule against the search site, he said.

“Here’s something one of your friends posted,” said Risch. “These are not terrorist videos. So, even if Google were to lose in the Supreme Court, it’s unclear whether the behavior of the tech companies is similar to serving up recruitment videos for terrorists because it’s harmful to kids to see other kids primping and doing whatever else they do.”

“This, by the way, is completely accepting these sites are harmful,” he added.

But if the case is allowed to progress, regardless of the final outcome, it could still be problematic for the social media giants.

“I can’t wait to begin discovery,” said Commissioner DiGirolamo. “Where we dig into the emails of the people who work for these companies. They knew what they were doing. ‘Not harmful and not addictive.’ Where have we heard that before? We heard it from the drug companies for many, many years. And (they) pushed these drugs on society.

“I think we’re going to find out these social media platforms knew exactly what they were doing and were preying on our young people. And we’d like to put an end to it, and we’d like to hold them accountable.”

A spokesman for TikTok said he could not comment on litigation but noted the company has various safeguards for underage users including limits on screen time.  Snapchat did not respond to a request for comment.

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After he acquired Twitter, Elon Musk granted several journalists access to internal messages between the government and the platform’s moderators, which demonstrate concerted efforts by various federal agencies — including the FBI, the Centers for Disease Control and Prevention, and the White House — to persuade Twitter to restrict speech. These disclosures, known as the Twitter Files, are eye-opening.

But Twitter was hardly the only object of federal pressure. According to confidential documents obtained by Reason magazine, health advisers at the CDC also had significant input on pandemic-era social media policies at Facebook. They were consulted frequently, at times daily. They were actively involved in the affairs of content moderators, providing constant and ever-evolving guidance. They requested frequent updates about which topics were trending on the platforms, and they recommended what kinds of content should be deemed false or misleading.

These files show that the platform responded with incredible deference. Facebook routinely asked the government to vet specific claims, including whether the virus was “man-made” rather than zoonotic. (The CDC responded that a man-made origin was “technically possible” but “extremely unlikely.”)

In other emails, Facebook asked: “For each of the following claims, which we’ve recently identified on the platform, can you please tell us if: the claim is false; and, if believed, could this claim contribute to vaccine refusals?” (Twitter, for its part, gave the CDC access to a special portal that made it easier to report misinformation infractions.)

The platforms may have thought they had little choice but to please the CDC, given the tremendous pressure to stamp out misinformation. This pressure came from no less an authority than President Biden, who famously accused social media companies of “killing people” in a July 2021 speech.

“What’s at stake is the future of free speech in the technological age,” said Jenin Younes, the New Civil Liberties Alliance’s litigation counsel. “We’ve never had a situation where the federal government at very high levels is coordinating or coercing social media to do its bidding in terms of censoring people.”

These concerns are well-founded, as the emails obtained by Reason.com make clear. Throughout the pandemic, CDC officials exchanged dozens of messages with content moderators.

Facebook is a private entity and thus is within its rights to moderate content in any fashion it sees fit. But the federal government’s efforts to pressure social media companies cannot be waved away. A private company may choose to exclude certain perspectives, but if the company takes such action only after politicians and bureaucrats threaten it, reasonable people might conclude the choice is an illusion. Such an arrangement — whereby private entities, at the behest of the government, become ideological enforcers — is unacceptable. And it may be illegal.

There is a word for government officials using the threat of punishment to extort desired behaviors from private actors. It’s jawboning.  Will Duffield, a policy analyst at the libertarian Cato Institute, thinks the federal government’s jawboning on COVID-19 misinformation might violate the First Amendment.

“Multiple arms of the administration delivered the jawboning effort together,” Duffield said. “Each one component wouldn’t rise to something legally actionable, but when taken as a whole administration push, it might.”

A proposed solution is to explicitly prohibit government officials from engaging in jawboning. Rep. Cathy McMorris Rodgers, R–Wash., has introduced a bill, the Protecting Speech from Government Interference Act, that would penalize federal employees who use their positions to push for speech restrictions. Enforcement would be akin to the Hatch Act, which prohibits federal employees from using their positions to engage in campaign activities. If this bill were to become law, federal officials would have to be more careful about advising social media platforms to censor speech or risk loss of pay or even termination. 

This is the superior approach: Legislators should regulate government employees’ encouragement of censorship on social media platforms rather than the platforms themselves.

The loudest jawboners are the nation’s senators and congressional representatives, frequently inveighing against the tech industry and its leaders. Democratic lawmakers routinely accuse Facebook of subverting American democracy by allowing too many Russian bots and then threatening to break up the company. Republicans say virtually the same thing, except they claim American democracy was subverted by Big Tech’s mishandling of the Hunter Biden laptop story.

Prohibiting lawmakers from demanding censorship is legally thornier than prohibiting federal bureaucrats from making demands of private media companies. The Speech or Debate Clause of the Constitution gives members of Congress fairly broad latitude to say whatever is on their minds. So, ultimately, it is up to voters to punish congressional jawboning and politicians who don’t support free speech.

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Dr. Oz is off Facebook, and he says it’s censorship.

Even before Facebook and Twitter nuked former President Donald Trump’s accounts, there were instances of Big Tech censoring conservatives, Republicans, and right-leaning media outlets.

A case in point is the New York Post’s bombshell report about Hunter Biden’s salacious laptop, which was suppressed by Twitter before the Nov. 2020 presidential election. Later, Twitter CEO Jack Dorsey admitted the social media company should not have censored that article, but the damage was done. Facebook also put restrictions on the news article, whose accuracy has never been challenged or disproven.

Now, as celebrity Dr. Mehmet Oz enters the 2022 Republican race for the Pennsylvania Senate seat being vacated by GOP Sen. Pat Toomey, he is accusing Facebook of returning to its old tricks.

“I just got some disturbing news,” Oz said in a press release on Tuesday. “Facebook has restricted my account – and is not letting me advertise to you. It could hurt the momentum that we’ve been building with this campaign. Now, we’ve asked them what’s going on and they say they’re looking into it, but it’s been more than 24 hours. I need to get my conservative messages out. They matter.

“I don’t want big tech putting their thumb on the scale to shift the balance of power here,” said Oz. “You need to learn about strong families and how to protect your individual freedoms. We’re not going to be canceled. We won’t be censored. We won’t be shut down.”

Oz spokeesman Casey Contres said, “Big Tech and the political establishment are trying to stop Dr. Oz’s campaign to empower Pennsylvanians, but it is not going to work. We are seeing incredible energy and enthusiasm at every stop and that will only continue to grow.”

Oz, a cardiothoracic surgeon and star of the television show, “Dr. Oz,” has entered a crowded field. It includes Republicans Montgomery County businessman Jeff Bartos, author and television commentator Kathy Barnette, Sean Gale, a Montgomery County lawyer, and Carla Sands, who served as ambassador to Denmark for President Trump. Democrats include doctors Val Arkoosh, chair of the Montgomery County commissioners, and Kevin Baumlin, a Philadelphia ER doctor; U.S. Rep. Conor Lamb; Lt. Gov. John Fetterman; and state Rep. Malcolm Kenyatta (D-Philadelphia).

Libertarian Erik Gerhardt is also a candidate.

Facebook, meanwhile, did not immediately respond to a request for comment regarding Oz’s complaint.

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I’m used to being suspended by social media. I have a fairly colorful way of expressing myself, which is attributable to my Irish-Italian pit bull lineage. But I’m also a lawyer, which means I have some passing understanding of how to carefully parse words and phrases so that I can insult you without actually insulting you, I can attack without visibly drawing blood, I can tread that filament of space between cheeky and defamatory.

But these days, we don’t deal in nuance. In fact, social media has become so obsessed with politically correct expression and sanitized thought that if there is even the suspicion of someone saying something that goes against conventional wisdom or accepted societal rules, they are virtually arrested, virtually charged, virtually tried and virtually convicted before you can upload a new profile picture.

This is what happened to me the other day when I posted something that I thought was funny and fairly innocuous in terms of its social impact. I’d been involved the night before in an unpleasant exchange with a woman in a pizza shop. She had a mask on and was choosing which slice of upscale designer focaccia she wanted to bring home to her Rittenhouse Square penthouse. At the end of the counter was a man, mask dangling from his ear, waiting for his own order to be warmed up and sipping on an espresso.  Here is how I described what happened next:

“From the right of me I hear, “Put on your mask.” I knew the comment wasn’t directed at me because I was already wearing the ineffective, butterfly-wing-thin piece of paper on my nose and mouth, something I call my Bocca Burqa, so that I could access the restaurant.

I looked around and realized that the woman was talking to the man who was waiting for his order, his own mask dangling from one ear as he sipped an espresso at the bar. He was more than 6 feet away from her.

The man said “Mind your own business, lady.” I would have been even less polite, so I gave him points. The woman, blessed with the flaming red hair her ancestors never had and struggling to mobilize cryogenically-frozen mouth muscles screamed (and I mean screamed) “Put your mask on you fat ass.”

The man was overweight, but I was always taught that you can only safely criticize the weight of blood relatives and Rosie O’Donnell, so I was shocked. The man replied in kind, saying “Shut up, bitch.”

And she gathered all of her powers of indignation and fury and launched the most scathing, deadly, hurtful thing she could come up with: “Fuc$ing Trump voter. I hope you die, but don’t you kill me!”

And then his order arrived and he went to a corner table to eat.

I was still in shock. I was debating whether to say anything when the woman told the cashier: “I live here and I’m not going to let that animal make me sick.”

And that did it. I said, “Ma’am, that was completely wrong. I’m wearing a mask. I’m vaccinated. But you are out of line. Did you have to be insulting? Calling him fat? And really? Trump? Last time I checked, Biden is president.”

She looked taken aback that someone who was superficially a fellow traveler (female, mask wearer, wearing animal print accessories) was criticizing her. But she rebounded quickly. “He’s a fat, ignorant anti-science Trumper.”

At that point the manager came to the register and looked at me and said, “Please, can you stop raising your voices and making a scene?”

And that’s when Joan of Arch Street emerged and said, pointing like Emile Zola in “J’accuse!”

“It was THAT woman. Her. She started it when she insulted that man (waving an accusatory finger at the embarrassed male diner). She called him fat. She called him a Trump voter. She is at fault.”

And then I looked at the manager and said, “I don’t need your pizza that badly. I need to be more than 6 feet away from HER.” (Accusatory finger shifts back to Redhead, who was as naturally Red as a California Redwood) and then I stormed out of the pizzeria.

As I trudged home, sans pizza and umbrella but with conviction, I realized that I do not want to be within 6 feet of anyone who makes masks and vaccines the hallmark of their humanity.”

That was the entire content of my post, give or take a few emojis.  It got a few thumbs up, lots of clicks, and I also shared it in a private Facebook group I belong to. Private groups are just that, private. Only those who have access to the group can see the posts, and I’m pretty sure that no one in this group objected to my post.

But lo and behold, I get a notice from Facebook that I was being suspended for three days because my post had “violated Community standards” by spreading “misinformation” about masks and vaccines.  That’s exactly what it said. I re-read my post, and while it did appear a bit cutting, particularly the comments about the lady’s flaming hair, I couldn’t find anything in it that disseminated false facts.  It was pure opinion, albeit snarky in tone (is there any other tone?)

Ironically, hours after I was told that I’d been put in Facebook Siberia, they took off my ankle bracelet and I was released. There was no warning nor explanation, I  just woke up the next morning and was able to post like a normal human being.  It wasn’t exactly Alexander Solzhenitsyn getting out of the Archipelago Zuckerberg, but it was rather momentous.  Apparently, my appeal to the Facebook gods had been reviewed and approved.

But I’m not celebrating. The fact that something I posted in a private social media group caught the attention of someone with Stasi propensities, and a knee-jerk decision was made based on partisan assumptions, is appalling.  The fact that an opinion was considered “dangerous” is Kafkaesque. The fact that making fun of a woman who was making fun of a man violates “Community standards” and we have no idea what those standards are really troubles me. It should trouble all of us.

Whatever your opinions on masks or vaccines or abortion or election fraud or Chris Cuomo or Larry Krasner, they’re your opinions. Opinions are not dangerous. You know what is, though?

Not being able to have them.

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