School districts seeking to hold social media platforms accountable for addicting their students and causing harm to property and education are employing a novel twist on the same public nuisance doctrine that was used in legal battles against opioid makers and vape pen sellers.
Districts in California, Florida, Rhode Island, and Washington allege that social media companies—including
What’s new here is the involvement of speech: It’s rare for public nuisance suits, traditionally filed over property, to pose constitutional concerns, with the exception of the Second Amendment in firearms cases.
The school districts allege that the companies designed their platforms to be addictive, using features like algorithms and the “like” button, in ways that hurt society—akin to cigarette manufacturers that designed their products to be addictive.
Even if that reasoning is true, “it’s just different when it’s speech,” said Jane Bambauer, a professor at the University of Florida’s Levin College of Law. “The First Amendment requires the government to be quite tolerant of people using anything they can to persuade others to listen to them longer.”
The use of public nuisance theories in litigation over opioids, firearms, and tobacco has generated significant controversy in recent decades, with some lawyers adamant that it takes common law tort too far, while others say it’s critical to fill in policy gaps.
The school district suits join hundreds of complaints filed by students, parents, and state attorneys general in a pending complex coordination proceeding in Los Angeles state court and a pending multidistrict case in federal court in Oakland, Calif.
Two California state and federal judges are now weighing whether to dismiss the districts’ claims.
Most of the other, non-school district social media addiction lawsuits lean on product liability and negligence claims, with mixed success.
1. What is public nuisance?
Public nuisance is a doctrine that’s been applied in on a vast number of issues, in cases spanning issues like climate change, tobacco, Confederate monuments, and Covid-19 protocols.
Broadly, entities create a “public nuisance” when they expose a broad community to a certain kind of risk. A traditional example would be a factory pumping pollutants into a nearby waterway.
To be covered by the “public nuisance” tort, parties don’t need to experience the same type or degree of harm. However, a party that brings a public nuisance claim must be able to allege that it harmed them uniquely. School districts allege they’re hurt by an increase in educational expenses that result from the need to educate social media-addicted youth.
Social media companies say that’s not enough of a reason for schools to get damages. Their attorneys argued in court filings that, by that logic, other institutions that engage with young people who are on social media could also make claims, like hospitals and local businesses.
In addition to concerns about whether school districts are the right plaintiffs, and free speech concerns, schools will have to show some kind of causation—for example, proof that the social media companies are ultimately at fault for a rise in expense related to replacing bathroom fixtures destroyed during the “devious lick” TikTok challenge.
It’s difficult to prove this responsibility in court, as evidence that the platforms are addictive is still debatable, Bambauer said.
“When the social science itself is that conflicted, this may be different from the case of the cigarette,” Bambauer said.
2. How does the First Amendment factor in?
Though public nuisance is a widely-used doctrine, it’s less common in cases that also involve First Amendment rights.
Courts have held up speech protections in other types of torts, like trespass, said Shelley Saxer, a professor with the Pepperdine Caruso School of Law. In those cases, judges have ruled that private property owners who open their doors to the public must let people hand out leaflets inside.
Still, it’s novel to see free speech protections factor into a tort like public nuisance, which is viewed to deal primarily with property, Saxer said.
Courts must apply certain levels of scrutiny when individual constitutional rights are part of a case. When a challenge to a policy or regulation involves the First Amendment by making a distinction based on content, Bambauer said, the case will receive the highest scrutiny.
Claims against user speech or even forms of expression such as “like” buttons are likely content-based, Bambauer said. Claims against algorithms could be considered content-neutral, triggering an intermediate level of scrutiny.
Still, “intermediate scrutiny is no cakewalk,” Bambauer said. “It genuinely requires the government to make a showing.”
3. What isn’t public nuisance?
Social media companies claim that broadening the scope of claims that can be brought under public nuisance would create “endless liability” for companies. They argue that they can’t be singled out among broader social and economic forces that converge to cause harm.
Public nuisance “is not meant to be a panacea for addressing all social ills,” argued Ashley Hardin of Williams & Connolly LLP for the tech companies in California state court this month.
These companies argue “public nuisance” should be strictly contained to land use concerns, like when a factory spills chemicals into a nearby river that the general public relies on.
However, claims of public health were allowed to proceed in the Juul litigation, argued Felicia Craick of Keller Rohrback in state court for the school districts.
The social media companies can be singled out for their role in the mental health crisis, Craick said, because documents show company leaders intended to hook youth on their products.
Critics of public nuisance say it deals with issues that should be left to policymakers, not courts. But Saxer said it can be a helpful tool to fill in policy gaps while keeping constitutional protections in place.
“If you have regulation, what you’re doing is you’re legislating or regulating in advance of the problem occurring,” Saxer said. “By doing that, I think you end up chilling a lot of constitutionally protected activity.”
The cases are In Re: Social Media Adolescent Addiction/Pers. Inj. Products Liab. Litigation, N.D. Cal., No. 4:22-md-03047
and Social Media Cases JCCP, Cal. Super. Ct., No. JCCP5255
Read More:
—From Bloomberg Law
Social Media a ‘Double-Edged Sword’ for Students, Judge Says
Social Media Judge Says Algorithms, Peer Pressure Hard to Divide
ANALYSIS: Schools Repurpose Juul Claims Against Meta, TikTok
Landmark Juul, Altria Trial Builds on Gambit That Felled Opioids
New Jersey Brands Gun Industry a ‘Public Nuisance’ in Lawsuits
—From Bloomberg News
Can Lawsuits Make Social Media Safer for Kids?
Opioid Distributors Win Case Alleging They Fueled Drug Abuse (1)
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