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We’ve been talking a lot of about the use of artificial intelligence lately, for obvious reasons. Many of those conversations have revolved around the video game industry and I’ve been fairly vocal about pushing back against the “all AI is bad everywhere forever” dogma that I see far too often. There are plenty of folks in our community that don’t agree with me on that, and that’s fine. But if the picture you’re getting is that I’m an AI evangelist, that’s simply not true. There are potentially good uses of AI in my view, as well as a whole lot of potential negative outcomes of its use. I’m not blind to that.

And, in the video game industry specifically, one bit of pushback that seems to be sorely needed is on game developers that use generative AI in their games, fail to say so, and then excuse its use as accidental after the fact. That is becoming as common a refrain from game developers as the laughable excuse in trademark instances that is, “Well, I have to be an aggressive jerk about my trademarks or else I lose them.” Neither is true.

The most recent version of this concerns the recent hit launch of Crimson Desert. In what is becoming something analogous to the antiquated process by which people who watch golf tournaments on TV looking for missed rules violations could then send into the PGA, which I’ve coined as McPromptism, new game releases get put under a microscope by people looking to find AI uses within them. Crimson Desert went through this process and, wouldn’t you know it, people found clear uses of AI-generated assets in the game.

The game’s extremely high fidelity and impressive graphics are a big part of the sales pitch, which made it all the more disappointing when players began to come across what appeared to be AI-generated artwork littered throughout the game. In light of the disappointment, developer Pearl Abyss has apologized for including the slop in their game, promising to remove and replace all of it.

“We also acknowledge that we should have clearly disclosed our use of AI,” the Crimson Desert account posted on X. “We are currently conducting a comprehensive audit of all in-game assets and are taking steps to replace any affected content. Updated assets will be rolled out in upcoming patches. In parallel, we are reviewing and strengthening our internal processes to ensure greater transparency and consistency in how we communicate with players moving forward.”

Like I said above, this excuse is getting old. Very old. Game developers and publishers will be more than aware at this point that a sizable percentage of the gaming public is very allergic to the use of AI in games, particularly when that use is not acknowledged at the forefront. If placeholder assets generated by AI are to be used at all in the development of a game, it is inexcusable for a developer to not have a process to remove them in place of human-created art before the game is published. That’s sloppy at best, and a lie of an excuse at worst.

Especially because it’s not like there aren’t other options that have nothing to do with AI.

The practice is becoming more common in AAA developer spaces, but critics argue that setting aside the use of AI in your game, it’s pretty foolish to use temporary assets that don’t call obvious attention to themselves. In games of such massive scale, BRAT-green blocks that scream “DO NOT USE” are much easier to flag than something approximating the final product.

I’m struggling to come up with a counter-argument to that.

I’m still in a place where I think there are valid uses of AI in gaming development. If a dev or publisher wants to explore those uses and, importantly, is upfront about it, there may be a place for that.

But the excuse of laziness when it comes to stripping AI assets out when their use was not intended is lame and needs to go away.

The expression, “to make a federal case out of something” usually describes making a bigger deal out of something than it should be. But in the case of Anthropic and Hegseth, Trump, and the Department of Defense*, this federal case is actually quite simple: what the government defendants did to Anthropic is beyond the bounds of anything the law or Constitution would allow. It didn’t require some complicated analytical parsing to see the problem with the Administration’s behavior, and the remedy is straightfoward: there’s now an injunction depriving that behavior of any effect (albeit stayed for seven days).

But the government is only restrained as to what it did that was actually illegal. Importantly, the injunction clarifies that to the extent that the government could lawfully stop working with Anthropic, it remained fully able to divorce itself. From the full paragraph on the last page of the preliminary injunction order itself articulating what has been restrained:

This Order restores the status quo. It does not bar any Defendant from taking any lawful action that would have been available to it on February 27, 2026, prior to the issuances of the Presidential Directive and the Hegseth Directive and entry of the Supply Chain Designation. For example, this Order does not require the Department of War to use Anthropic’s products or services and does not prevent the Department of War from transitioning to other artificial intelligence providers, so long as those actions are consistent with applicable regulations, statutes, and constitutional provisions.

As the decision justifying the injunction explains, this case wasn’t about whether and how DOD could use Anthropic and whether Anthropic could have a say in how it was used, which was the issue underpinning the contract dispute between the two. Had it been, then the DOD could have simply walked away from the product. The problem is that the government didn’t just stop doing business with Anthropic; it went further, and it is those actions that broke the law.

The question here is whether the government violated the law when it went further. After Anthropic went public with its disagreement with the Department of War, Defendants reacted with three significant measures that are the subject of this lawsuit. First, the President announced that every federal agency (not just the Department of War) would immediately ban Anthropic from ever having another government contract. That would include, for example, the National Endowment for the Arts using Claude to design its website. Second, Secretary Hegseth announced that anyone who wants to do business with the U.S. military must sever any commercial relationship with Anthropic. That would mean a company that used Claude to power its customer service chatbot could not serve as a defense contractor. Third, the Department of War designated Anthropic a “supply chain risk,” a label that applies to adversaries of the U.S. government who may sabotage its technology systems. That designation has never been applied to a domestic company and is directed principally at foreign intelligence agencies, terrorists, and other hostile actors. [p.1-2]

And the court counts several ways that the government’s actions were likely illegal. At minimum, Anthropic suffered a due process violation for not having notice and an opportunity to respond to the government’s sudden supply chain risk designation, which threatened a cognizable liberty interest the Fifth Amendment protects. (“The record shows that the Challenged Actions threaten to cripple Anthropic by not only stripping it of billions of dollars in federal contracts and subcontracts but also by labeling it as an adversary to the United States and ending its ability to have any commercial relationship with any company that might want to do business with DoW.”) [fuller analysis p.24-29]

The “supply chain risk” designation was also likely “both contrary to law and arbitrary and capricious.” On the first point, there are two statutory paths for designating a vendor a supply chain risk, and this case addressed just one of them—the other will be addressed by the DC Circuit. But it found the government’s claim it was using the statutory authority properly to be wanting: First, Anthropic’s conduct did not meet the statutory definition of a supply chain risk.

On the record before the Court, Anthropic’s conduct does not appear to be within the definition of “supply chain risk” in Section 3252. Section 3252 defines a supply chain risk as limited to “the risk that an adversary may sabotage, maliciously introduce unwanted function, or otherwise subvert . . . a covered system.” 10 U.S.C. § 3252(d)(4). Assuming without deciding that a domestic company can be an “adversary,” the plain text of the statute is directed at covert acts or hacks, not overt positions taken during contract negotiations. Indeed, it is difficult to understand how one could sabotage, maliciously introduce an unwanted function, or subvert an information technology system by publicly announcing usage restrictions or insisting on such restrictions in conversations with DoW. Defendants appear to be taking the position that any vendor who “push[es] back” on or “question[s]” DoW becomes its “adversary.” (Dkt. No. 128 at 41.) That position is deeply troubling and inconsistent with the statutory text. [p.30-32]

And second, those procedural rules the government blew off to invoke the statute, such as the need to notify Congress first, actually mattered. Despite what the government argued at oral argument, that the Congressional notification requirements were only for the benefit of Congress, the court found that they were important safeguards Congress had built into the statute to prevent its abuse and therefore non-optional. (“Section 3252 and its enabling regulations create institutional safeguards—which the Secretary must complete before making a designation—to ensure that its designation is applied properly. The Supply Chain Designation failed to comply with these mandated procedural safeguards.”) [see analysis p.32-34].

In addition, the designation itself was likely arbitrary and capricious. As the court noted early in its decision (emphasis added):

The Department of War provides no legitimate basis to infer from Anthropic’s forthright insistence on usage restrictions that it might become a saboteur. At oral argument, government counsel suggested that Anthropic showed its subversive tendencies by “questioning” the use of its technology, “raising concerns” about it, and criticizing the government’s position in the press. Nothing in the governing statute supports the Orwellian notion that an American company may be branded a potential adversary and saboteur of the U.S. for expressing disagreement with the government.[p. 2; further analysis p.35-37 (“In sum, the contradictory positions, the procedural defects, and the rushed process following a public declaration of the foreordained conclusion all indicate that the actions were arbitrary and capricious.”)]

And then there is the problem at the heart of the matter: that it appears the government is trying to punish Anthropic for daring to criticize it, and that sort of retaliation for speech violates the First Amendment.

The record supports an inference that Anthropic is being punished for criticizing the government’s contracting position in the press. In their announcements, the President and Secretary Hegseth called Anthropic “out of control” and “arrogant,” describing its “sanctimonious rhetoric” as an attempt to “strong-arm” the government. The Department of War’s records show that it designated Anthropic as a supply chain risk because of its “hostile manner through the press.” Punishing Anthropic for bringing public scrutiny to the government’s contracting position is classic illegal First Amendment retaliation. [p.2]

And it violates the First Amendment not only by impinging on Anthropic’s right to speak, but everyone else, who is now deterred from speaking out as well, even on matters of public concern like ethical use of AI, given that the government is now inflicting consequences on those who speak in ways it doesn’t like. To the court, the government’s action looks clearly retaliatory. (“The record shows that Defendants’ conduct appears to be driven not by a desire to maintain operational control when using AI in the military but by a desire to make an example of Anthropic for its public stance on the weighty issues at stake in the contracting dispute.”) [p.19]. A retaliation claim can succeed when (1) the plaintiff was engaged in constitutionally protected activity, (2) the defendant’s actions would “chill a person of ordinary firmness” from continuing to engage in the protected activity, and (3) the protected activity was a substantial motivating factor in the defendant’s conduct—in other words, that what the defendant did was intended to chill speech, and here the court found all these prongs met. [p.20].

On the first, Anthropic was publicly staking out a position on what deployments of Claude are currently unsafe and what rights Anthropic has to allow Claude’s use by the government only with certain safety restrictions, which the court found to be a matter of public concern and thus protected by the First Amendment. (“[T]he record shows that Anthropic and its CEO, Dario Amodei, are a loud and influential voice regarding the capabilities, risks, and safe uses of AI technology.”) [p.20]. As to the second, there was plenty of evidence of speech being chilled:

Anthropic has submitted evidence that the Challenged Actions threaten to cripple the company and chill public debate. See supra Section II.G. Several amicus briefs support this conclusion. A group of 37 individuals working on AI technology assert that the Challenged Actions “chill[] professional debate on the benefits and risks of frontier AI systems and various ways that risks can be addressed to optimize the technology’s deployment.” (Dkt. No. 24-1 at 8.) An industry group of “values-led investors” warns that the Challenged Actions chill speech necessary to allow them to direct their investments to support the “principles and values” they care about. (Dkt. No. 77-1 at 12.) In short, the Challenged Actions easily qualify as ones which would chill a person of ordinary firmness from continuing to engage in further protected speech amici in the case showed how everyone’s speech was being chilled by what the government had done.[p.21]

And as for the third, the government’s behavior clearly resulted from displeasure with Anthropic’s views and the desire to relinquish them.

Secretary Hegseth expressly tied Anthropic’s punishment to its attitude and rhetoric in the press. He stated that “Anthropic delivered a master class in arrogance.” (Dkt. No. 6-21 at 2.) Referring to Anthropic and Amodei, he further stated: “Cloaked in the sanctimonious rhetoric of ‘effective altruism,’ they have attempted to strong-arm the United States military” through their “corporate virtue-signaling” and “Silicon Valley ideology.” (Id.) “Anthropic’s stance is fundamentally incompatible with American principles.” (Id.) The President described Anthropic as “radical left, woke company” and its employees as “leftwing nut jobs,” who “made a DISASTROUS MISTAKE trying to STRONG-ARM the Department of War.” (Dkt. No. 6-20 at 2.) Read in context of these repeated references to rhetoric and ideology, the term “strong-arm” in the Presidential Directive and the Hegseth Directive appears to be characterizing Anthropic as applying public pressure. […] These specific references to Anthropic’s viewpoint and public stance are direct evidence of what motivated Defendants’ decision-making.[p.21-22]

And the government’s defense—that Anthropic’s “contracting position” is conduct, not speech entitled to First Amendment protection, and that Anthropic’s refusal to accept DOD’s terms was what prompted the government’s actions—was unavailing.

First, without reaching the question of whether private contract negotiations alone could constitute protected activity under the First Amendment, the record shows that Anthropic engaged in protected speech when it took public the parties’ contracting impasse and the reasons behind its refusal to agree to DoW’s terms. (See, e.g., Dkt. Nos. 6-7, 6-18.) As already explained, Anthropic’s views on this matter fall within the heart of what the First Amendment protects: “subject[s] of general interest and of value and concern to the public” and “of legitimate news interests.” See Snyder, 562 U.S. at 452–53 (citation omitted). Therefore, to the extent Anthropic publicly discussed its “contracting position,” that speech is protected by the First Amendment.

Next, Defendants argue that even if Anthropic’s public statements constitute protected speech, the contract dispute—not Anthropic’s speech—was the motive and “but for” cause of the Challenged Actions. (Dkt. No. 96 at 22–24.) They point out that although Anthropic and Amodei have long advocated for AI safety, Defendants took the Challenged Actions only after Anthropic refused to remove its usage restrictions. But Defendants’ own actions belie the notion that Anthropic’s contracting position is what drove the Challenged Actions. Anthropic had imposed its usage restrictions from the beginning of DoW’s use of Claude Gov, and no one had ever suggested that this indicated that Anthropic was untrustworthy or a potential saboteur. To the contrary, Anthropic passed extensive vetting at that time and was praised by the government, which had made arrangements to expand the company’s role. It was only when Anthropic publicly discussed its dispute with DoW that Defendants criticized its rhetoric and ideology and adopted the punitive measures at issue.[p.22-23]

Throughout the decision the court observes that if the dispute here were just over the contract, then surely the government would have just stopped using Claude. But it didn’t just do that; it did more. And that more is now enjoined. The February 27 Presidential Directive from Trump “ordering all federal agencies to cease use of Anthropic’s technology” is to have no effect, nor is any agency action (by any agency,** not just the DOD), taken in response to it. No one in the Trump Administration (Anthropic had named pretty much every agency as defendants, so that’s basically how it boils down) may “issu[e] or maintain[] any guidance, directive, communication, or instruction to any officer, employee, contractor, or agent, in furtherance of or implementing the Presidential Directive” or “tak[e] any other action to implement, effectuate, or further the purposes of the Presidential Directive.”

Meanwhile, Hegseth and the DOD are also enjoined from “implementing, applying, or enforcing in any manner” what the court referred to as the Hegseth Directive, issued later on February 27, designating Anthropic a “Supply-Chain Risk to National Security” and “directing that no contractor, supplier, or partner doing business with the United States military may conduct commercial activity with Anthropic.” Nor can it implement, apply, or enforce anything in the March 3 letter DOD sent notifying Anthropic of the supply chain designation and the associated determination formalizing that designation under 10 U.S.C. § 3252. Hegseth and the DOD are also enjoined from “[f]rom issuing or maintaining any guidance, directive, communication, or instruction to any officer, employee, contractor, or agent, in furtherance of or implementing the Hegseth Directive or the Supply Chain Designation [and from] taking any other action to implement, effectuate, or further the purposes of the Hegseth Directive or the Supply Chain Designation.”

* No, it’s not the “Department of War” as unfortunately both parties and even the court called it, for reasons that elude. Perhaps Anthropic feared it would pull a Trump-friendly judge and need to speak the Administration’s language in order to be treated fairly, but such was not the case, at least in this piece of the case in the Northern District of California—maybe it will be different in the second piece of the case in the DC Circuit. But it’s not clear why the court had to humor them; it applies law, and the law, as passed by Congress to create, name, and fund the agency, calls it the Department of Defense, with Hegseth having been appointed to a specific job called the “Secretary of Defense.” If Congress wanted it to be called the “Department of War” it could have named it thus, but it found there were tangible policy reasons not to when it in fact changed its name to the DOD instead. It typifies the Trump Administration’s typical indifference to any law that might happen to govern any of its behavior to ignore it and Congress’s authority to pass it by unilaterally trumping Congress’s wishes and rename it, but no one else needs to indulge yet another of their abuses of power by humoring their choice.

** The Executive Office of the President is not bound by the injunction directly, despite being a named defendant. Nevertheless, “[l]ike all other persons, EOP is barred from acting for, with, by, through, or under authority from any enjoined Defendant, or in concert or participation with any enjoined Defendant, in any manner inconsistent with the preliminary injunction order.” [p.42]

Remember when Elon Musk told advertisers to “go fuck” themselves and then sued them for the crime of taking his advice? A federal judge has now dismissed that lawsuit — with prejudice — confirming what anyone with a passing familiarity with antitrust law already knew: companies deciding they don’t want their brands plastered next to extremist content aren’t engaged in an illegal conspiracy. They’re just making basic (probably pretty smart) business decisions.

When X Corp filed this case back in August of 2024, we walked through in great detail why the legal theory was fundamentally broken. Not broken in a “they pleaded it badly” kind of way, but broken in a “this theory does not describe an antitrust violation no matter how many drugs you’re taking or how convinced you are that the world owes you advertising dollars” kind of way. Judge Jane Boyle of the Northern District of Texas has now agreed, and the key section of her ruling is worth reading in full, because it says what we said at the outset: X has not suffered antitrust injury.

The court laid out the standard, quoting the Fifth Circuit, channeling the Supreme Court, on what counts as an antitrust injury:

The Supreme Court has distilled antitrust injury as being “injury of the type the antitrust laws were intended to prevent and that flows from that which makes defendants’ acts unlawful.” … “The antitrust laws … were enacted for ‘the protection of competition not competitors.'” … “Typical” antitrust injury thus “include[s] increased prices and decreased output.” … “This circuit has narrowly interpreted the meaning of antitrust injury, excluding from it the threat of decreased competition.” … “Loss from competition itself—that is, loss in the form of customers[] choosing the competitor’s goods and services over the plaintiff’s—does not constitute an antitrust injury.” … In short, the question underlying antitrust injury is whether consumers—not competitors—have been harmed.

Antitrust law protects competition, not competitors. X’s entire argument boiled down to: “advertisers chose to spend their money somewhere other than our platform, and that hurt us.” But that’s just… the market. That’s how markets work. Customers choosing not to buy from you because they don’t like what you’re selling has never been an antitrust violation, and the court made short work of explaining why.

Amusingly, the GOP — whose campaigns Musk has bankrolled extensively — spent decades pushing for exactly this narrow definition of antitrust injury, precisely to make cases like this harder to bring. Perhaps one of those politicians could have mentioned that before Elon filed.

But this case was never actually about winning an antitrust case. It was a warning shot at advertisers: give Elon your money or we’ll drag you through an expensive court process. A shakedown dressed up in legal filings. Indeed, after the lawsuit was filed, it was reported that part of X’s “sales” process was to threaten companies that they’d be added to the lawsuit if they didn’t advertise on the platform.

The court examined X’s theory from two different angles, and it failed both times. First, if the conspiracy was supposed to benefit competing social media platforms (like Pinterest, one of the defendants), X hadn’t alleged that any competitor was actually behind the boycott or pressuring advertisers to exclude X so the competitor could corner the market:

X has not alleged that the advertisers chose to do business with Pinterest—or any other social media company—as part of an agreement not to do business with X. Unlike the large hospital in Doctor’s Hospital, Pinterest is not alleged to be X’s competitor that wanted to exclude X from the market so that it could charge higher prices. In turn, unlike the network in Doctor’s Hospital, the advertisers did not decide to boycott X at Pinterest’s—or any other X competitor’s—behest to secure the competitor’s business. Instead, X alleges a conspiracy driven by advertisers not to further X-competitor social media companies’ interests but to pursue their own collective interests as to where they place their advertisements.

Second, if the conspiracy was supposed to eliminate competition at the advertiser level, the court found that GARM wasn’t acting as some kind of gatekeeper blocking X from accessing customers. It was just… advertisers deciding for themselves:

GARM is not an economic intermediary like the retailers in Eastern States. GARM did not buy advertising space from X to sell to advertisers nor did it, in such an arrangement, tell X not to sell directly to GARM’s customers. Rather, GARM was organized by advertisers and reflected their “avowed commitment to furthering [their] economic interests . . . as a group.” … Thus, if GARM is the obstacle to X reaching its advertiser-customers directly, then it is the equivalent of the advertiser-customers themselves deciding not to deal.

That’s the ballgame. Advertisers collectively deciding they don’t want to spend money on your platform — especially after you’ve told them to go fuck themselves and your platform has become a haven for content that damages their brands — just doesn’t state an antitrust claim. Imagine being so entitled that when the marketplace rejects your offering, you insist that it must be an antitrust attack on your rights to their money?

The court was so confident in this conclusion that it dismissed the case with prejudice and denied X the opportunity to replead, noting that the 165-paragraph complaint was already plenty detailed:

The 165-paragraph Second Amended Complaint contains no dearth of detail: if facts existed that GARM operated at an X competitor’s behest to put X out of business or that GARM advertisers sought to unfairly exclude competing advertisers from doing business, X would have pleaded those facts. The very nature of the alleged conspiracy does not state an antitrust claim, and the Court therefore has no qualm dismissing with prejudice.

When a court tells you the nature of your theory doesn’t work, that’s about as definitive a loss as you can get.

As we noted when the case was filed, the evidence X submitted in its own complaint actually undermined the case. One of X’s own exhibits showed GARM’s lead, Rob Rakowitz, explicitly telling an advertiser that GARM doesn’t make recommendations and that advertising decisions are “completely within the sphere of each member and subject to their own discretion.” Another email showed Rakowitz telling an advertiser asking about Twitter that “you may want to connect with Twitter directly to understand their progress on brand safety and make your own decisions.” This is the supposedly nefarious conspiracy that X spent years and untold legal fees litigating.

Separately, I have to mention the blatant forum shopping: X filed this case in the Wichita Falls Division of the Northern District of Texas, which was widely understood as a transparent attempt to land in front of Judge Reed O’Connor, known for partisan rulings and already presiding over Elon’s SLAPP suit against Media Matters. That didn’t work out — O’Connor recused himself, not because of his ownership of Tesla stock, but rather his ownership of some advertising firms who were defendants. The case got reassigned to Judge Boyle, and X still lost. In an ironic twist, X then tried to transfer the case to the Southern District of New York, only to have the court deny that motion because X couldn’t even prove they did business in that specific district. So X handpicked a forum, lost its judge, and then couldn’t escape to a different one. Great lawyering.

But the legal dismissal, satisfying as it is, doesn’t capture the most important part of what actually happened here. Because while the court correctly found that X suffered no antitrust injury, GARM itself suffered a very real injury: it was killed.

GARM shut down within days of the lawsuit being filed, following Rep. Jim Jordan’s misleading congressional investigation that painted the organization as some kind of anti-conservative censorship machine. Jordan’s pressure campaign, combined with the threat of expensive litigation from the world’s richest man, made it untenable for GARM to continue operating. The organization that existed to help advertisers make informed decisions about brand safety — a fundamentally expressive activity, protected by the First Amendment — was destroyed through government jawboning and litigation threats.

There was only one attack on free speech involved here and it came from Jim Jordan and Elon Musk, not GARM or its advertiser members.

X filed this lawsuit wrapped in the language of free speech. Former X CEO Linda Yaccarino literally wore a necklace that said “free speech” while announcing the case, claiming that advertisers not giving X money was somehow an attack on users’ ability to express themselves. The actual speech suppression ran the other direction entirely. A private organization exercising its speech rights to help its members make informed business decisions was bullied out of existence through a combination of congressional intimidation and frivolous litigation.

Jordan celebrated GARM’s dissolution as a victory for free speech — par for the course for the censorial MAGA GOP. A congressman used the weight of his office to pressure a private organization into shutting down, and called that free speech. Meanwhile, the lawsuit that was part of that same ecosystem of intimidation has now been found to have no legal merit whatsoever.

This is what actual jawboning looks like in practice. The lawsuit didn’t need to succeed to accomplish its goal. GARM is gone. The organization that facilitated conversations among advertisers about how to protect their brands has been silenced. The chilling effect on any future organization that might want to do something similar is obvious and intentional. Any industry group that tries to coordinate around brand safety now knows that it might face a billionaire-funded lawsuit and a congressional investigation for its trouble.

The court’s ruling is a vindication of basic antitrust law. But the more important point is about what the actual free speech dynamics were in this whole saga.

X can appeal, of course, and given that this falls within the Fifth Circuit, stranger things have happened. But the fundamental problem remains what it’s always been: the theory that advertisers owe you their business because you exist, and that organizing around brand safety is a criminal conspiracy, has never been a viable legal argument. The court said so plainly. Dismissed with prejudice. Nothing to fix, because the whole premise was broken from the start.

In 2018, the Supreme Court ruled that warrants were needed to obtain cell site location info (CSLI). That decision dealt with law enforcement’s warrantless acquisition of 127 days of location data from a cell service provider. As the court saw it, the government was leveraging access to this data to turn cell phones (which has been given heightened protections with the 2014 Riley decision) into government tracking devices, all without having to bother with warrants or deploying government-crafted tracking tech.

The rationale for this 4th Amendment bypass was this: location data slurped up by websites and downloaded apps wasn’t exactly the same thing as cell tower location data. Therefore, it could be had without a warrant. In fact, it could be had without bothering the courts at all with a subpoena or any other lighter-weight legal paperwork. The government could just buy this data and sort through it to find what it was looking for. Some third parties were even willing to do the sorting for the right price, freeing the government up to pursue other rights violations.

This option obviously experienced a jump in popularity following the Supreme Court’s Carpenter ruling. While the spokespeople constantly stated the agencies they represented (which was pretty much all of them when it came to buying data from data brokers) were super-interested in respecting constitutional rights, they never took the time to explain their “respect” meant constantly testing (or breaking!) the boundaries until court precedent forced them to do otherwise.

In 2023, anti-encryption zealot Christopher Wray was heading the FBI. During the last years of his tenure, he admitted to Congress (or, more specifically, privacy hawk Senator Ron Wyden) that the FBI was — like CBP, ICE, US Secret Service, IRS, and federal prisons — buying up as much location data as it could purchase. Wray insisted this process was “court-authorized,” but somehow couldn’t find any court documents laying around that would support his claims of authorization.

The government is still buying this data. And it’s even more problematic than it was a few years ago, when federal agencies weren’t being run by MAGA loyalists and outright racists. Now there’s a new wrinkle: the government is delving into ad markets to siphon off RTB (real-time bidding) data that’s capable of tying location data to specific devices, even if those hawking the data pretend it’s been anonymized.

So, it comes as absolutely no surprise that aspiring frat bro Kash Patel’s FBI is doing the same thing that plenty of immigration-focused agencies are already doing. Yet again, it’s Senator Wyden demanding answers. And it’s Kash Patel answering the questions without honestly engaging with the questions. Here’s Zack Whittaker with the details for TechCrunch:

When asked by U.S. Senator Ron Wyden, Democrat of Oregon, if the FBI would commit to not buying Americans’ location data, Patel said that the agency “uses all tools … to do our mission.”

“We do purchase commercially available information that is consistent with the Constitution and the laws under the Electronic Communications Privacy Act — and it has led to some valuable intelligence for us,” Patel testified Wednesday.

First, there’s the obviously false insistence that this is all very constitutional. Buying location data from data brokers doesn’t just violate the spirit of the Supreme Court’s Carpenter decision, it’s only a letter or three off from violating the letter of the law. When the only difference is where you’re obtaining long-term location tracking data, you’re just exploiting loopholes rather than actually trying to be “consistent with the Constitution.”

The second part is even stupider. When you claim that legally-questionable efforts have “led to some valuable intelligence,” you’re just saying that the ends justify the means. And if that’s the low bar you’ve set for yourself, you’re going to be violating rights regularly because you prefer harvesting data to respecting rights.

This sums up the government’s stance concisely:

The FBI claims it does not need a warrant to use this information for federal investigations; though this legal theory has not yet been tested in court.

The government — especially this one — will never err on the side of restraint. It would rather explore the outer edges of legal theory, sacrificing our rights in exchange for more government power. At some point, this legal theory will be tested. But until it is, the government is going to continue to pretend the implications of Carpenter don’t apply to anything that hasn’t been specifically ruled unconstitutional.

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Last week, Senator Eric Schmitt of Missouri got into a heated exchange during a Senate hearing with Stanford’s Daphne Keller. Schmitt, who, as Missouri’s Attorney General, originally filed the Missouri v. Biden lawsuit, was berating Keller over Stanford’s supposed role in helping the Biden administration censor social media during the 2020 election (see if you can spot the time-space continuum problem with that sentence). When Keller pushed back on his characterization of events, Schmitt got increasingly agitated and told her she could “read all about it in Missouri v. Biden.” Keller’s response was instant and devastating: “The one you lost?“

He did not take it well, immediately throwing an embarrassing Senatorial temper tantrum.

And so maybe it’s not surprising that just a week later, Schmitt was doing a victory lap over a “settlement” that his friends in the Trump administration very conveniently worked out with the remaining plaintiffs in the case. The framing, of course, was triumphant. From his post on social media:

Shorter version:

We just won Missouri v. Biden.

As Missouri’s Attorney General, I sued the Biden regime for brazenly colluding with Big Tech to silence Missouri families — censoring the truth about COVID, the Hunter Biden laptop, the open border, and the 2020 election. They tried to turn Facebook, X, YouTube, and the rest into their private speech police, labeling dissent “misinformation” while they pushed their narrative on the American people.

Missouri struck first—and Missouri won big.

And the New Civil Liberties Alliance, which represented many of the plaintiffs, was even more grandiose in its description of the settlement:

The federal government’s social media censorship was the most massive suppression of speech in the nation’s history, it was profoundly important to resist it.

Even the Washington Post editorial board got taken in, writing about the settlement as a “forceful affirmation of First Amendment principles.” Reclaim the Net went even further, claiming the decree represented a “formal, court-enforceable admission: the federal government pressured social media platforms to silence protected speech.”

There’s just one fairly big problem. None of this is true. The case was a dud. While it is true that the district court hyped it up as (what the NCLA repeated) “the most massive attack against free speech in United States’ history,” literally no one else found the same. The Fifth Circuit saw that most of the claims were flimsy and cut back nearly the entire injunction, and the Supreme Court threw it out completely (“the one that you lost”) not only pointing out five separate times that there was “no evidence” to support the claims of censorship, but also calling out the district court’s findings, noting that they “appear to be clearly erroneous.”

It’s quite a misleading victory lap to quote the judge who both higher courts called out for misreading the evidence to say things that the evidence clearly did not say (it was actually worse: the judge fabricated quotes to make it sound like there was evidence when there was not).

As for this “settlement,” anyone who actually reads it would realize that it doesn’t support any of the claims making the rounds.

Now the reason Schmitt claims he didn’t “lose” the case is because, technically, the Supreme Court rejected the case on “standing” grounds — meaning the plaintiffs hadn’t shown they had a legal right to bring the case. But the reason they didn’t have standing was devastating to the plaintiffs’ entire theory. The opinion methodically dismantled the conspiracy theory at the heart of the case:

We reject this overly broad assertion. As already discussed, the platforms moderated similar content long before any of the Government defendants engaged in the challenged conduct. In fact, the platforms, acting independently, had strengthened their pre-existing content-moderation policies before the Government defendants got involved. For instance, Facebook announced an expansion of its COVID–19 misinformation policies in early February 2021, before White House officials began communicating with the platform. And the platforms continued to exercise their independent judgment even after communications with the defendants began. For example, on several occasions, various platforms explained that White House officials had flagged content that did not violate company policy.

The Court further called out how the lower courts had built their case on lies and misrepresentations:

The District Court found that the defendants and the platforms had an “efficient report-and-censor relationship.”… But much of its evidence is inapposite. For instance, the court says that Twitter set up a “streamlined process for censorship requests” after the White House “bombarded” it with such requests. The record it cites says nothing about “censorship requests.” Rather, in response to a White House official asking Twitter to remove an impersonation account of President Biden’s granddaughter, Twitter told the official about a portal that he could use to flag similar issues. This has nothing to do with COVID–19 misinformation.

In other words, the Supreme Court looked at the actual record, found a pile of conspiratorial nonsense, and told the lower courts they got played. This was a loss. A clear, unambiguous loss.

But of course, with Trump back in office and the same crew of ideologues now running the government, it was time to manufacture a win. And so we get this “consent decree.”

On paper, it sounds dramatic. The NCLA breathlessly announced that the settlement “prohibits the U.S. Surgeon General, Centers for Disease Control and Prevention (CDC), and Cybersecurity and Infrastructure Security Agency (CISA) from threatening social media companies into removing or suppressing constitutionally protected speech.” Schmitt claimed the decree means “no more threats of legal, regulatory, or economic punishment. No more coercion. No more unilateral direction or veto of platform decisions.”

But if you actually read the consent decree (and I encourage you to do so, because clearly many of the people celebrating it haven’t), you find something remarkable: the decree prohibits conduct that the Supreme Court found no evidence was happening, while explicitly carving out everything that actually was happening.

First (and most importantly), the decree only applies to three remaining individual plaintiffs (Dr. Aaron Kheriaty, Jill Hines, and Jim Hoft) and two states, and only on five specific platforms. It doesn’t protect anyone else. If you’re a random American whose content gets moderated on social media, this decree does absolutely nothing for you. That certainly doesn’t match what Schmitt claimed.

Second, and more importantly, paragraph 24 of the decree is where the whole thing collapses:

This prohibition does not extend to providing Social-Media Companies with information that the companies are free to use as they wish. Nor does it extend to statements by government officials that posts on Social Media Companies’ platforms are inaccurate, wrong, or contrary to the Administration’s views, unless those statements are otherwise coupled with a threat of punishment within the meaning of the above provision.

That paragraph basically describes exactly what the Biden administration was actually doing — and declares it fine. The government can still share information with social media companies. It can still tell companies that content on their platforms is wrong or inaccurate. It can still express displeasure. It just can’t couple those statements with threats of punishment.

Which is… exactly what the First Amendment already requires. And exactly what the Supreme Court found was not happening in the first place. The consent decree literally codifies the Biden administration’s actual conduct as permissible while grandly prohibiting a phantom version of events that the Supreme Court found no evidence of.

Even better, paragraph 17 of the decree says the quiet part out loud:

The parties acknowledge that this Agreement is entered into solely for the purpose of settling and compromising any remaining claims in this action without further litigation, and, except as stated explicitly in the text of the Agreement, it shall not be construed as evidence or as an admission regarding any issues of law or fact, or regarding the truth or validity of any allegation or claim raised in this action or in any other action.

So the decree is explicitly not an admission of anything. It cannot be construed as evidence of any wrongdoing. The government didn’t admit to censorship. Reclaim the Net’s headline — “US Government Admits Pressuring Social Media Platforms to Censor Protected Speech” — is directly contradicted by the text of the document they’re supposedly celebrating. Did they not read it?

Yes, the preamble quotes Trump’s executive order making grand accusations about Biden-era censorship. But that’s a political document, not a finding of fact. The Trump administration saying the Biden administration did bad things is hardly the same as the Biden administration admitting it did bad things, or a court finding that it did bad things. In fact, the only court to substantively examine the evidence — the Supreme Court — found no evidence to support these claims.

So what we have here is a neat little trick: the Trump administration negotiates a settlement with friendly plaintiffs (some of whom had to drop out of the case because they joined the Trump administration), quotes Trump’s own executive order as if it were established fact, and everyone involved pretends this vindicates the original claims — despite the Supreme Court (and a clean reading of the evidence) having rejected them.

Speaking of those former plaintiffs, let’s talk about the delicious absurdity of how this case ate itself. Dr. Jay Bhattacharya, one of the original individual plaintiffs who claimed he was censored by the Biden administration, had to drop out of the case because he was confirmed as Director of the National Institutes of Health — the agency he claimed (without evidence) had “censored him” even though his lawyers somehow forgot to add NIH as a defendant. Dr. Martin Kulldorff similarly withdrew because of his new role within the Department of Health and Human Services. The supposed victims of government censorship are now running the very agencies they accused of censoring them. And, again, I have to reinforce, that the Supreme Court called out the lack of actual “censorship” for either of these guys.

Both Bhattacharya and Kulldorff were mad that Facebook restricted access to the Great Barrington Declaration, a document they co-authored. But they fail to mention that the person running the Great Barrington Declaration website has publicly revealed that the reason Facebook blocked it was anti-vaxxers mass reporting the site — because they misread the declaration as supporting “forced vaccinations.” (There are more details at the link above).

So naturally, despite all this, the fact that they became top officials in the Trump administration should raise questions about how suddenly the administration worked out a friendly settlement with their friends who were still plaintiffs. What a coincidence.

But the real tell is what’s happening right now, while MAGA is celebrating: the Trump admin is doing far worse than anything Biden was even accused of. Yes, while the Trump administration and its gullible friends are busy patting themselves on the back for supposedly defending free speech from the horrors of the Biden administration sharing information with social media companies, it is engaged in conduct that is far, far worse than anything alleged in Missouri v. Biden.

As you’ll certainly recall, the Trump administration’s FCC Chair Brendan Carr went on a podcast and explicitly threatened Disney with regulatory retaliation over Jimmy Kimmel’s monologues, telling them “we can do this the easy way or the hard way.” Hours later, the show was pulled. That’s textbook coercion — exactly the kind that the Supreme Court in both Murthy and Vullo said would violate the First Amendment if proven. Unlike the conduct in the case that just settled, where the Supreme Court found no such proof.

And then we have the even clearer violation: Pam Bondi’s Department of Justice demanded that Apple and Google remove the ICEBlock app from their stores… and bragged about it! That’s the federal government literally ordering private companies to suppress an application. Not sending mean emails. Not sharing information platforms are free to use as they wish. An explicit demand for removal.

“We reached out to Apple today demanding they remove the ICEBlock app from their App Store—and Apple did so,” Bondi added according to the Fox report.

Where’s Schmitt’s outrage? Where’s the NCLA lawsuit? Where’s Philip Hamburger’s condemnation of “the most massive suppression of speech in the nation’s history”?

Nowhere. Because this was never really about free speech. This was about building a narrative that the Biden administration censored conservatives, manufacturing a legal document that appears to vindicate that claim (despite explicitly saying it doesn’t), and then using it as political cover while engaging in an even more extreme version of the conduct you claimed to oppose.

This perfectly matches the pattern Renee DiResta documented in her Lawfare review of Schmitt’s book — which he subtitled “how to beat the left in court” — where she noted his habit of presenting cases he lost as if he won them. The book apparently describes multiple lawsuits where Schmitt failed to achieve his stated legal objectives but then spun the results as massive victories for the narrative benefit. Missouri v. Biden is the crown jewel of this approach: lose at the Supreme Court, negotiate a meaningless consent decree with a friendly administration, declare total victory.

Even the Washington Post editorial board, which gave the decree far more credit than it deserved, couldn’t quite look away from the obvious:

The unfortunate catch is that the settlement only applies to the specific plaintiffs in this particular case. In other words, only the people who initially sued the Biden administration, and public officials from Louisiana and Missouri, will enjoy the court-ordered protections from government censorship. It’s unlikely the current administration would target right-leaning individuals or states, but the consent decree will apply for 10 years.

The settlement also applies only to government pressure on five companies: Facebook, Instagram, X (formerly Twitter), Linkedln and YouTube. That means, for example, Federal Communications Commission Chairman Brendan Carr’s efforts to bully broadcasters to toe the administration’s political line will be unaffected.

So even the Post recognizes that the decree does nothing about actual, current, obvious government coercion of media companies. But somehow this is still a “forceful affirmation of First Amendment principles”? How so? A consent decree that protects three specific people from conduct that wasn’t happening, while the government signing the decree is actively coercing media companies in ways that obviously violate the First Amendment?

The consent decree is a press release disguised as a legal document. It prohibits First Amendment violations the Supreme Court found no evidence of, permits everything the evidence shows the Biden administration was actually doing, and was signed by an administration currently engaged in the exact conduct the decree pretends to prohibit.

The one you lost, indeed.

When right wing billionaire Larry Ellison (and his nepobaby kid David) hired trolling blogger Bari Weiss to run CBS News, Weiss arrived with the promise of “balanced, fact-based news,” “independent, principled journalism,” and a unique “entrepreneurial drive and editorial vision” that would completely modernize the network and reach the “everyday Americans” traditionally ignored by mainstream media.

As we noted at the time, that was all bullshit code for turning CBS into yet another outlet that panders to global autocrats, normalizes far right wing extremism, coddles corporate power, and generally shits all over progressive societal reforms.

Weiss wasn’t a journalist, had no serious journalism experience, isn’t good at journalism, and wasn’t hired to do journalism. She was hired specifically to do ratings-grabbing, viral, right wing friendly agitprop which the Ellisons mistakenly seemed to think there was a massive market for. But unfortunately for Weiss, she’s not good at that either.

And it’s just observationally true that nobody actually wants what CBS’ new ownership is selling.

Broadcast TV was already in trouble (just 20% of all TV viewing is now broadcast). The conspiratorial right wing MAGA movement already has countless propaganda outlets to choose from. And the folks who used to find CBS News semi useful aren’t sticking around. “CBS Evening News” ratings keep dipping below 4 million viewers; the kind of ratings that caused CBS to revamp things in the first place.

In fact, CBS News just saw its worst quarter of ratings in 25 years, and it’s not slowing down:

“Demo figures are perhaps even more alarming. “CBS Evening News” lost about 15% of its viewership in the adults 25 to 54 bracket for the first quarter of 2026. ABC is also off by around 4%, while “Nightly” is up 8%.”

Oliver Darcy put it this way over at his newsletter:

“Viewers are smart. They understand that under Ellison’s ownership, and with Weiss at the helm, CBS News has charted a new course … one that is friendlier to Donald Trump and the MAGA movement he leads.”

It’s just not clear who Weiss thinks she’s appealing to. There’s no shortage of weird, timid, corporatist, center-right blandness across journalism. Countless outlets are making such a pivot the under Trump in an industry that’s being increasingly consolidated under the ownership of terrible rich assholes with increasingly extreme, anti-democratic ideals. And fewer and fewer people watch broadcast TV anyway.

It’s clear Larry Ellison and other right wingers envy and want to emulate the control of media Victor Orban enjoys in Hungary. Under most autocratic models, party-loyal oligarchs buy up all the major companies, pummel the country with propaganda, and the government sues, harasses, and strangles real journalism just out of frame. As it progresses and gets worse, journalists often wind up dead.

But America is much bigger and much more diverse than Hungary. People are also increasingly consuming media and news in short form snippets from a massive and expanding assortment of influencers (credible or not), independent outlets, and direct-to-consumer journalists. “Flooding the zone with shit,” (to use a Steve Bannon term) impacts everybody, and makes it hard for any one player to dominate modern media.

The folks who’ll rise above the noise in this fractured, new, badly automated, modern media landscape have to be either extremely clever, inherently gifted at pandering to the lowest common denominator, or undeniably authentic.

Bari Weiss is none of those.

Bari came into her job insisting she had the secret sauce to modernize CBS in the viral social media era, and by every indication there’s no evidence that’s actually true. Much of the stuff she’s introduced is just foundationally boring cack of interest to nobody.

As a result, I suspect Weiss’ tenure won’t last past the end of the summer.

I don’t want to give Larry Ellison any ideas, but you could see a future where he hires someone who actually is the modern hustlebro manfluencer version of Roger Ailes; somebody who can leverage CBS and Ellison’s new co-ownership of TikTok to create a truly modern, even uglier version of Fox News that seeds social media with inflammatory, pseudo-journalistic bullshit peppered with sports betting ads.

The thing is there’s just absolutely no evidence anybody at this new Paramount is remotely competent for good or ill, whether we’re talking about Weiss or Paramount President Jeff Shell (who was fired from Comcast for allegations of sexual harassment, and is now going through weird legal tangles at CBS).

Unfortunately, if all Larry Ellison accomplishes is the destruction of another cornerstone of U.S. journalism, he’s still broadly made the world a worse place in a way that benefits him personally. Though even then, you’d like to think there’s potential for people who actually have something ethical or authentic to say to build something useful from the ashes.

Even at the best of times, the hallmark of RFK Jr.’s Health & Human Services is chaos. Whether it’s misinformation on vaccines and other public health matters, his unique ability to exit very smart people from public health agencies, or his desire to upend established government health protocols, it’s a constant frenzy when Kennedy is in charge.

But these aren’t the best of times for Kennedy. In fact, it appears that both legal and political mechanisms are starting to mete out consequences for all the nonsense going on at HHS. It was only days ago that a federal court issued an injunction on the CDC’s changes to vaccination schedules since Kennedy remade ACIP in his image, and in fact the new ACIP appointments themselves may be illegal. Almost simultaneously, reports came out that the White House is attempting to yank Kennedy and HHS out of the spotlight due to their becoming a political liability heading into the midterms.

And now, in what will both be a reaction to and furtherance of all of that chaos, Robert Malone has announced that he is leaving ACIP altogether. Malone is a proud anti-vaxxer and claims to have “invented” mRNA technology, a claim that is heavily disputed, to put it mildly. In the wake of the court’s injunction on ACIP and its recommendations for vaccine schedules, there was reporting that Kennedy was planning to disband ACIP once again and remake it with all new members as a quicker fix than appealing the court’s decision. As a result, Malone jumped straight to social media to claim that’s exactly what happened, before later retracting his statement.

On Thursday, Malone claimed on social media that the Department of Health and Human Services (HHS) had disbanded ACIP and planned to completely reconstitute it (again), without appealing the judge’s ruling or defending Kennedy’s ACIP picks from the judge’s claims that they were unqualified. But soon after, Malone retracted his claim, saying it was a miscommunication and that disbanding ACIP was merely one of the “options being considered.”

In other words, he took half-baked information and made definitive claims to the masses, claims that turned out to be incorrect. So, you know, basically on par with all of the nonsense he’s spewed about vaccines. HHS spokesman Andrew Nixon then had to issue a statement to the press to clean all of this up, stating that anything that doesn’t come directly from him or HHS brass was “baseless speculation”.

And it was that, of all things, that caused Malone to quit.

Malone told Roll Call today that Nixon’s response was what led to his departure. “After Andrew trashing me with the press, I am done with the CDC and ACIP,” Malone said in a text message Tuesday morning. “That was the last straw.”

“Suffice to say I do not like drama, and have better things to do,” he added.

And then he went to the New York Times as well.

“Hundreds of hours of uncompensated labor, incredible hate from many quarters, hostile press, internal bickering, weaponized leaking, sabotage—I have better things to do,” he said.

On the one hand, I don’t think much of Malone’s qualifications for being a member of ACIP, so I’m not exactly sad to see him exit stage left. But it is interesting to see that the impression of chaos, infighting, bickering, and internal backstabbing that you get viewing HHS from the outside is mirrored by someone on the inside.

This would be funny if this weren’t a matter of public health. If there weren’t a measles outbreak that is still ongoing in this country (we’re already at 1,487 CDC confirmed cases this year). If some of the public and some doctors didn’t take what comes out of this very important government agency seriously.

But all those things are true. The chaos has to end. And for that to happen, RFK Jr. must go.

Ctrl-Alt-Speech is a weekly podcast about the latest news in online speech, from Mike Masnick and Everything in Moderation‘s Ben Whitelaw.

Subscribe now on Apple Podcasts, Overcast, Spotify, Pocket Casts, YouTube, or your podcast app of choice — or go straight to the RSS feed.

In this week’s round-up of the latest news in online speech, content moderation and internet regulation, Mike and Ben cover:

• How London become a T&S hub (Everything in Moderation) 
• Everyone Cheering The Social Media Addiction Verdicts Against Meta Should Understand What They’re Actually Cheering For (Techdirt)
• Supreme Court Sides With Internet Provider in Copyright Fight Over Pirated Music (New York Times)
• US settles social media censorship case, bars agencies from threatening penalties (Reuters)
• Meta’s latest AI improves its terrible content moderation (The Register)
• Transparency Report 2025 (User Rights)
• An automated moderation error left Tumblr users panicked (The Verge)

Don’t forget to listen along with Ctrl-Alt-Speech’s 2026 Bingo Card and drop us a line if you win or have ideas for new squares.

For years, certain folks on the left kept insisting they wanted to bring back the Fairness Doctrine — the old FCC policy that required broadcasters to present “both sides” of controversial issues. Many of us in the tech policy world kept explaining why that was a terrible idea, one ripe for abuse and fundamentally at odds with the First Amendment. The FCC itself repealed the Doctrine back in 1987, partly because it found that compelling broadcasters to present multiple views actually reduced the quality and volume of coverage on important issues — the exact opposite of what it was supposed to do. The requirement to air “both sides” of a controversial story was the kind of burden that just made the broadcast media less willing… to cover controversial stories at all.

Well, congratulations to everyone who wanted to reanimate that corpse. FCC Chairman Brendan Carr is doing something remarkably similar — except he’s only using it in one direction (the other problem with the Fairness Doctrine, it depends entirely on the enforcers), to punish outlets that report things the Trump administration doesn’t like, while conveniently leaving alone outlets that parrot the administration’s preferred narratives.

We’ve been covering Carr’s censorial ambitions for a while now. When Trump picked Carr to chair the FCC, we noted that despite all the “free speech warrior” branding from the administration and the credulous political press that repeated it, Carr had made it abundantly clear he wanted to be America’s top censor. And he’s delivered on that promise with remarkable enthusiasm — going after CBS over “60 Minutes”, threatening ABC over Jimmy Kimmel’s jokes, and most recently threatening to revoke broadcast licenses of outlets that accurately report on the disastrous war in Iran.

Now, a broad coalition of more than 80 legal scholars, former FCC officials, and civil society organizations — organized by TechFreedom and signed by groups ranging from the ACLU to EFF to the Knight First Amendment Institute to the Institute for Free Speech — has sent a formal letter to Carr laying out, in meticulous legal detail, exactly how his threats violate the First Amendment. I’m proud to note that our think tank, the Copia Institute, is among the signatories, and this was a very easy decision.

The letter is direct about what Carr is doing:

We write concerning your abuse of the “public interest” standard as a weapon against viewpoints you and President Donald Trump do not like. You assert that “[b]roadcasters … are running hoaxes and news distortions – also known as the fake news” in a retweet of a President Donald Trump’s complaint that The Wall Street Journal and The New York Times were the “Fake News Media” because of headlines he alleged were misleading. You threatened that broadcasters who engaged in similar reporting would “lose their licenses” if they do not “correct course before their license renewals come up.” The next day, the President threatened broadcasters and programmers with “Charges for TREASON for the dissemination of false information!”

It’s kind of incredible how much of this is absolutely batshit crazy and simply could never have been imagined under any other presidential administration. The President of the United States threatened news outlets with treason charges — which carry the death penalty — for reporting things he didn’t like. And the FCC Chairman who spent years claiming to be a “free speech” absolutist, rather than defending the press from this kind of authoritarian nonsense, was the one who teed it up.

The letter does an excellent job of explaining why Carr’s reliance on the vague and essentially dormant “news distortion” policy is legally bankrupt. There’s an important distinction here that Carr is deliberately blurring: the FCC has an actual, codified Broadcast Hoax Rule that is extremely narrow and specific — it applies only when a broadcaster knowingly broadcasts false information about a crime or catastrophe, where it’s foreseeable that it will cause substantial public harm, and it actually does cause such harm. The FCC has applied it rarely, and typically only in cases involving the outright fabrication of news events like staged kidnappings.

That’s a world apart from what Carr is doing, which is invoking the far vaguer “news distortion” policy to go after headlines the president finds insufficiently flattering. As the letter notes:

[Y]our unsupported claim that unnamed broadcasters are engaged in unspecified “hoaxes,” combined with your invocation of the news distortion policy is plainly unconstitutional: it aims to do something the Supreme Court has forbidden—correcting bias or balancing speech—while its vagueness makes good-faith compliance impossible and invites arbitrary enforcement.

On that Supreme Court point, the letter cites Moody v. NetChoice (you remember: the Supreme Court case that ended Florida social media content moderation law). Recall, this is the very same Court that many expected would be friendly to conservative arguments about tech platforms supposedly “censoring” conservatives, but instead it made it crystal clear that the government has no business trying to reshape private editorial decisions:

In Moody v. Netchoice (2024), the Supreme Court rejected government efforts “to decide what counts as the right balance of private expression — to ‘un-bias’ what it thinks is biased.” “On the spectrum of dangers to free expression,” Moody said, “there are few greater than allowing the government to change the speech of private actors in order to achieve its own conception of speech nirvana.”

The letter also draws on NRA v. Vullo, another unanimous Supreme Court decision which we cite often, which held that “a government official cannot do indirectly what she is barred from doing directly: A government official cannot coerce a private party to punish or suppress disfavored speech on her behalf.” That’s a pretty precise description of what Carr is doing when he posts threats on social media about license renewals while his boss muses about treason prosecutions.

The most damning part of the letter is the receipts on Carr’s own hypocrisy. Back in 2019, Carr himself tweeted: “The FCC does not have a roving mandate to police speech in the name of the ‘public interest.'”

As the letter dryly observes, if the law were as “clear” as Carr now claims, why did he insist the FCC needed to “start a rulemaking” on it?

If, as you now claim, the “law is clear,” you would not have needed to suggest in 2024, that “we should start a rulemaking to take a look at what [the public interest standard] means.” In fact, the “public interest” standard becomes less clear each time you invoke it.

The letter also point out that Carr’s former colleague and mentor Ajit Pai also knows how messed up all this is:

Chairman Ajit Pai, your Republican predecessor, could “hardly think of an action more chilling of free speech than the federal government investigating a broadcast station because of disagreement with its news coverage or promotion of that coverage.” You have launched a flurry of such investigations.

And the letter documents that the chilling effect is already working:

Commissioner Anna Gomez has “heard from broadcasters who are telling their reporters to be careful about the way they cover this administration.”

Even Trump-supporting Republican officials like Ted Cruz have had enough of Brendan Carr’s censorial bullshit:

Sen. Ted Cruz (R-TX) understood that this a “mafioso” tactic “right out of ‘Goodfellas,’” essentially: “‘nice bar you have here, it’d be a shame if something happened to it.”

The fact that Ted Cruz of all people can see this for what it is should tell you something.

The signatories on this letter are worth noting. Beyond the civil society organizations, you’ve got former FCC officials from both parties, more than fifty First Amendment and communications law scholars from institutions ranging from Harvard to Stanford to Emory, and journalism scholars from across the country. There are people signed onto this letter who don’t agree with each other on much at all.

But on Brendan Carr’s censorship campaign, they all agree — because this really has nothing to do with partisan politics. This is about whether you believe the Constitution means what it says — or whether the First Amendment is just a talking point to wave around when it’s politically convenient and discard when it gets in the way. The same people who spent years fundraising off claims that Biden officials sending cranky emails about COVID misinformation represented an existential threat to free speech are now openly wielding license revocation and treason charges to dictate editorial content.

Look, we know Carr won’t do a damn thing in response to this letter. If anything, he’ll just screenshot parts and post it on X as proof that he’s upsetting the right people. That’s his whole game — the trolling, the culture war posturing, the audition tape for whatever higher office he’s eyeing. He doesn’t actually have to revoke any licenses (and likely couldn’t survive the legal challenge if he tried). The mere threat is the point, because, as the letter explains, the FCC can exercise “regulation by the lifted eyebrow” and hang a “Sword of Damocles” over each broadcaster’s head.

But highlighting the record still matters. When future scholars look back at this period and try to understand how a sitting FCC Chairman openly abandoned the First Amendment in service of a President who thinks “treason” is a synonym for “journalism I don’t like,” the documentation will be there.

And the breadth of the coalition sending this message matters too. This many scholars, former officials, and organizations — many of whom disagree vehemently on plenty of other issues — all looked at what Carr is doing and arrived at the same conclusion: this is unconstitutional, it’s dangerous, and someone needs to say so clearly and publicly, even if the person doing it couldn’t care less.

The letter closes with a quote from the Supreme Court that fits this moment uncomfortably well, drawn from West Virginia Board of Education v. Barnette, decided in 1943 when the country faced actual existential threats:

“[T]here is ‘one fixed star in our constitutional constellation: that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.'”

Brendan Carr has decided he can ignore all that and censor at will. He’ll likely ignore this letter too. But unlike Carr, the record doesn’t forget.

Imagine a newspaper publisher announcing it will no longer allow libraries to keep copies of its paper. 

That’s effectively what’s begun happening online in the last few months. The Internet Archive—the world’s largest digital library—has preserved newspapers since it went online in the mid-1990s. The Archive’s mission is to preserve the web and make it accessible to the public. To that end, the organization operates the Wayback Machine, which now contains more than one trillion archived web pages and is used daily by journalists, researchers, and courts.

But in recent months The New York Times began blocking the Archive from crawling its website, using technical measures that go beyond the web’s traditional robots.txt rules. That risks cutting off a record that historians and journalists have relied on for decades. Other newspapers, including The Guardian, seem to be following suit. 

For nearly three decades, historians, journalists, and the public have relied on the Internet Archive to preserve news sites as they appeared online. Those archived pages are often the only reliable record of how stories were originally published. In many cases, articles get edited, changed, or removed—sometimes openly, sometimes not. The Internet Archive often becomes the only source for seeing those changes. When major publishers block the Archive’s crawlers, that historical record starts to disappear.

The Times says the move is driven by concerns about AI companies scraping news content. Publishers seek control over how their work is used, and several—including the Times—are now suing AI companies over whether training models on copyrighted material violates the law. There’s a strong case that such training is fair use. 

Whatever the outcome of those lawsuits, blocking nonprofit archivists is the wrong response. Organizations like the Internet Archive are not building commercial AI systems. They are preserving a record of our history. Turning off that preservation in an effort to control AI access could essentially torch decades of historical documentation over a fight that libraries like the Archive didn’t start, and didn’t ask for. 

If publishers shut the Archive out, they aren’t just limiting bots. They’re erasing the historical record. 

Archiving and Search Are Legal 

Making material searchable is a well-established fair use. Courts have long recognized it’s often impossible to build a searchable index without making copies of the underlying material. That’s why when Google copied entire books in order to make a searchable database, courts rightly recognized it as a clear fair use. The copying served a transformative purpose: enabling discovery, research, and new insights about creative works. 

The Internet Archive operates on the same principle. Just as physical libraries preserve newspapers for future readers, the Archive preserves the web’s historical record. Researchers and journalists rely on it every day. According to Archive staff, Wikipedia alone links to more than 2.6 million news articles preserved at the Archive, spanning 249 languages. And that’s only one example. Countless bloggers, researchers, and reporters depend on the Archive as a stable, authoritative record of what was published online.

The same legal principles that protect search engines must also protect archives and libraries. Even if courts place limits on AI training, the law protecting search and web archiving is already well established.

The Internet Archive has preserved the web’s historical record for nearly thirty years. If major publishers begin blocking that mission, future researchers may find that huge portions of that historical record have simply vanished. There are real disputes over AI training that must be resolved in courts. But sacrificing the public record to fight those battles would be a profound, and possibly irreversible, mistake. 

Republished from the EFF’s Deeplinks blog.

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This judge ain’t fucking around. Earlier this month, we covered New Jersey federal judge Zahid Qurashi’s response to the actions of Trump’s DOJ, which begins with lots of illegal appointments of prosecutors and runs right through these prosecutors’ inability to defend the administration’s actions.

To wit:

The Government’s handling of Petitioner’s detention is emblematic of its approach to immigration enforcement in this state. On the merits, its detentions are illegal. The Government knows this. Its reliance on Section 1225 has been roundly rejected.

And:

Sadly, the well-deserved credibility once attached to that distinguished Office is now a presumption that “has been sadly eroded.” The Government’s continued actions after being called to task can now only be deemed intentional.

Courts have been flooded with immigration cases and vindictive prosecutions targeting Trump’s enemies. They’re fighting back, but even a massive consensus seems incapable of slowing Trump’s roll.

This case — brought to our attention by Owen Barcala — involves the sort of serious crimes the administration has put on the back burner so it can flood the immigration enforcement zone. While the administration focuses on ejecting all non-white foreigners from this country while claiming they’re simply seeking out the “worst of worst,” the (alleged) worst of the worst are pretty much being ignored.

Thanks to the massive amount of turnover at the DOJ, there are not a whole lot of qualified prosecutors left to do the government’s (increasingly) dirty work. In New Jersey, (illegal) appointee Alina Habba (a former Trump PAC spokesperson/advisor) has already voluntarily stepped down, proving she’s more capable of reading the writing on the wall than her former employer.

In her place, Mark Coyne (in a made-up position meant to shield him from being booted for being illegally appointed) has stepped up to wrap up a child pornography prosecution. It’s not going well for Coyne, as the New York Times reports:

A federal judge threw a top prosecutor from the New Jersey U.S. attorney’s office out of his courtroom during a sentencing hearing this week and demanded that the office’s leadership testify about who had authority over their actions, according to court documents.

The rapid sequence of events on Monday in the courtroom of Judge Zahid N. Quraishi was the latest indication of growing tensions between the Justice Department and the federal judiciary in New Jersey. It came during the scheduled sentencing of a man who last year agreed to plead guilty to possession of child pornography.

The hearing did not go as prosecutors had planned. Judge Quraishi grew frustrated with the office’s head of appeals, Mark Coyne, who had not formally disclosed that he would appear, and fiercely interrogated a more junior prosecutor about whether the former interim U.S. attorney, Alina Habba, still had some role in operating the office.

Judge Qurashi referenced an order issued by federal judge Matthew Brann earlier this month, which declared the three-prosecutor hydra cobbled together by Pam Bondi to be a trio of unlawfully elevated prosecutors. That decision made the court’s displeasure explicit, using emphasis in the ruling to point out that the Trump administration cared more about who was running the New Jersey prosecutors’ office, rather than whether it was legally capable of running at all.

There are plenty of wonderfully quotable moments in the transcript of the hearing that ended with the government’s prosecutor being removed from the proceedings by the court.

It starts like this:

THE COURT: Mr. Coyne, did you file a notice of appearance in this case?
MR. COYNE: I did not.
THE COURT: Are you here for moral support? Because you’re not going to speak.
MR. COYNE: I would ask —
THE COURT: No.
MR. COYNE: — that the Court allow me to speak.
THE COURT: Nope. That’s not the representation made by the Government.

And then the court continues to riddle his body with bullets:

THE COURT: I’m not going to hear from you, Mr. Coyne. If you want to sit there for moral support or hand Mr. Rosenblum Post-its or whisper in his ear, I’ll let you do that as supervisor.

You’d think a corpse would keep its mouth shut. But Mr. Coyne apparently didn’t realize he was already dead.

The judge asked whether or not the three people Judge Brann had ruled were appointed unlawfully were still running the NJ US Attorney’s office. Mr. Rosenblum claimed he only knew what he’d been told by Mark Coyne, which apparently was nothing more than to shut up and claim ignorance. Unsatisfied with these non-answers and dodgy quasi-denials, Judge Quraishi pressed Rosenblum hard enough that Coyne — who had been directly ordered to sit this one out — felt compelled to respond:

THE COURT: What role does Alina Habba have currently in operating your office?
MR. ROSENBLUM: None that I’m aware of.
THE COURT: None that you’re aware of.
MR. ROSENBLUM: None.
THE COURT: All right. So she could be operating the office.
MR. COYNE: She is not.
MR. ROSENBLUM: She’s not.
MR. COYNE: She is not.
THE COURT: Sit down, Mr. Coyne. If you speak again, I’m going to have you removed. I already told you not to speak.
MR. COYNE: Your Honor —
THE COURT: You didn’t file a notice of appearance. You don’t get to blindside the Court and do whatever it is you guys want to do. So if you continue to speak, you can leave.
MR. COYNE: Your Honor —
THE COURT: Sit down.
MR. COYNE: — if —
THE COURT: Sit down.
MR. COYNE: If a notice of appeal–
THE COURT: Sit down.
MR. COYNE: -is entered–
THE COURT: I’m directing the court security officers to remove Mr. Coyne.

And with that, Mr. Coyne exits the court. Voluntarily, according to the transcript, but only voluntarily in the sense that court officers didn’t have to physically restrain him and remove him from the court.

But it’s not like the DOJ prosecutor left in the court room gets to skate by just by being less of an ass that Mark Coyne. Judge Quraishi refers to the order from Judge Brann from earlier in the month — one that specifically warned that if the DOJ kept the same “triumvirate” of illegally appointed US attorneys in that office, that it did so at its own peril.

The closing of the transcript says what so many federal judges think, but have also said in hearings and on the record in rulings and orders: the Trump DOJ has managed to completely destroy the reputation of the Department of Justice, despite having controlled it fully for barely over a year.

THE COURT: Here is your risk. This is your risk.

So your authority to operate is while [Judge Brann] has stayed the opinion, when he says literally on the last page, you don’t even have to go through all of this. All you have to do is turn to the back and it says “If the government chooses to leave the triumvirate in place, it does so at its own risk.”

What you’ve told me today, what your representation is, which I don’t believe by the way. I won’t believe it until you testify. That is what happened to the credibility of your office.Generations of U.S. Attorneys had built the goodwill of that office for your generation to destroy within a year.

This damnation isn’t unique. The DOJ is painting itself into a corner all over the nation. Hundreds of judges are no longer willing to take the government at its word. And that gives the government a handful of choices, none of which could be considered “wins.” The DOJ is going to have to dump prosecutions. Or it’s going to have to send its top prosecutors to testify under oath in court (which is way different than simply submitting sworn declarations). Or it’s going to have to go back to respecting the law, starting with the ousting of every illegally appointed US attorney.

The final option, however, isn’t generally considered viable, but it’s the one the administration is most likely to put in motion: ignoring every entity that opposes it while simultaneously telling Americans whose rights it’s trampling that this is the only way to make America great again.

First things first: Meta is a terrible company that has spent years making terrible decisions and being terrible at explaining the challenges of social media trust & safety, all while prioritizing growth metrics over user safety. If you’ve been reading Techdirt for any length of time, you know we’ve been critical of the company for years. Mark Zuckerberg deserves zero benefit of the doubt.

So when a New Mexico jury ordered Meta to pay $375 million on Tuesday for “enabling child exploitation” on its platforms, and a California jury found Meta and YouTube liable for designing addictive products that supposedly harmed a young user on Wednesday, awarding $6 million in total damages, the reaction from a lot of people was essentially: good, screw ’em, they deserve it.

And on a visceral, emotional level? Sure. Meta deserves to feel bad. Zuckerberg deserves to feel bad.

But if you care about the internet — if you care about free speech online, about small platforms, about privacy, about the ability for anyone other than a handful of tech giants to operate a website where users can post things — these two verdicts should scare the hell out of you. Because the legal theories that were used to nail Meta this week don’t stay neatly confined to companies you don’t like. They will be weaponized against everyone. And they will functionally destroy Section 230 as a meaningful protection, not by repealing it, but by making it irrelevant.

Let me explain.

The “Design” Theory That Ate Section 230

For years, Section 230 has served as the legal backbone of the internet. If you’re a regular Techdirt reader, you know this. But in case you’re not familiar, here’s the short version: it says that if a user posts something on a website, the website can’t be sued for that user’s content. The person who created the content is liable for it, not the platform that hosted it. That’s it. That’s the core of it. It serves one key purpose: put the liability on the party who actually does the violative action. It applies to every website and every user of every website, from Meta down to the smallest forum or blog with a comments section or person who retweets or sends an email.

Plaintiffs’ lawyers have been trying to get around Section 230 for years, and these two cases represent them finally finding a formula that works: don’t sue over the content on the platform. Sue over the design of the platform itself. Argue that features like infinite scroll, autoplay, algorithmic recommendations, and notification systems are “product design” choices that are addictive and harmful, separate and apart from whatever content flows through them.

The trial judge in the California case bought this argument, ruling that because the claims were about “product design and other non-speech issues,” Section 230 didn’t apply. The New Mexico court reached a similar conclusion. Both cases then went to trial.

This distinction — between “design” and “content” — sounds reasonable for about three seconds. Then you realize it falls apart completely.

Here’s a thought experiment: imagine Instagram, but every single post is a video of paint drying. Same infinite scroll. Same autoplay. Same algorithmic recommendations. Same notification systems. Is anyone addicted? Is anyone harmed? Is anyone suing?

Of course not. Because infinite scroll is not inherently harmful. Autoplay is not inherently harmful. Algorithmic recommendations are not inherently harmful. These features only matter because of the content they deliver. The “addictive design” does nothing without the underlying user-generated content that makes people want to keep scrolling.

As Eric Goldman pointed out in his response to the verdicts:

The lower court rejected Section 230’s application to large parts of the plaintiffs’ case, holding that the claims sought to impose liability on how social media services configured their offerings and not third-party content. But social media’s offerings consist of third-party content, and the configurations were publishers’ editorial decisions about how to present it. So the line between first-party “design” choices and publication decisions about third-party content seems illusory to me.

If every editorial decision about how to present third-party content is now a “design choice” subject to product liability, Section 230 protects effectively nothing. Every website makes decisions about how to display user content. Every search engine ranks results. Every email provider filters spam. Every forum has a sorting algorithm, even if it’s just “newest first.” All of those are “design choices” that could, theoretically, be blamed for some downstream harm.

The whole point of Section 230 was to keep platforms from being held liable for harms that flow from user-generated content. The “design” theory accomplishes exactly what 230 was meant to prevent — it just uses different words to get there.

Bad defendants make bad law. Meta is unsympathetic. It’s understandable why they get so much hate. It’s understandable why people (including those on juries) are willing to accept legal theories against them that would be obviously problematic if applied to anyone else. But legal precedent doesn’t care about your feelings toward the defendant. What works against Meta works against everyone.

The Return Of Stratton Oakmont

If this all sounds familiar, it should. This is almost exactly the legal landscape that existed before Section 230 was passed in 1996, and the reason Congress felt it needed to act.

In the early 1990s, Prodigy ran an online service with message boards and made the decision to moderate them to create a more “family-friendly” environment. In the resulting lawsuit, Stratton Oakmont v. Prodigy, the court ruled that because Prodigy had made editorial choices about what to allow, it was acting as a publisher and could therefore be held liable for everything users posted that it failed to catch.

The perverse incentive was obvious: moderate, and you’re on the hook for everything you miss. Don’t moderate at all, and you’re safer. Congress recognized that this was insane — it punished companies for trying to do the right thing — and passed Section 230 to fix it. The law explicitly said that platforms could moderate content without being treated as the publisher or speaker of that content. And, as multiple courts rightly decided, this was designed to apply to all publisher activity of a platform — every editorial decision, every way to display content. The whole point was to allow online services and users to feel free to make decisions regarding other people’s content, including how to display it, without facing liability for that content.

And a critical but often overlooked function of Section 230 is that it provides a procedural shield: it lets platforms get baseless lawsuits dismissed early, before the ruinous costs of discovery and trial.

These two verdicts effectively bring us back to Stratton Oakmont territory through the back door. By recharacterizing platform liability as “product design” liability rather than content liability, plaintiffs’ lawyers have found a way to nullify Section 230 without anyone having to vote to repeal it. Every design decision — moderation algorithms, recommendation systems, notification settings, even the order in which posts appear — can now be characterized by some lawyer as a “defective product” rather than an editorial choice about third-party content.

Except this time, instead of people being horrified by the implications, they’re cheering.

The Trial Is the Punishment

The dollar amounts in these cases tell an interesting story if you pay attention. The California jury awarded $6 million total — $4.2 million from Meta, $1.8 million from YouTube. For companies that bring in tens of billions in quarterly revenue, that’s effectively nothing. It’s not even a slap on the wrist. Meta will barely notice.

But that’s exactly the problem. The real cost here is the process. The California trial lasted six weeks. The New Mexico trial lasted nearly seven. Both involved extensive discovery, depositions of top executives including Zuckerberg himself, production of enormous volumes of internal documents, and armies of lawyers on both sides.

Meta can afford that. Google can afford that. You know who can’t? Basically everyone else who runs a platform where users post things.

And this is already happening. TikTok and Snap were also named as defendants in the California case. They both settled before trial — not because they necessarily thought they’d lose on the merits, but because the cost of fighting through a multi-week jury trial can be staggering. If companies the size of TikTok and Snap can’t stomach the expense, imagine what this means for mid-size platforms, small forums, or individual website operators.

The California case is just the first of multiple “bellwether” trials scheduled in the near future. Hundreds of federal cases are lined up behind those. There are over 1,600 plaintiffs in the consolidated California litigation alone. As Goldman noted:

Together, these rulings indicate that juries are willing to impose major liability on social media providers based on claims of social media addiction. That liability exposure jeopardizes the entire social media industry. There are thousands of other plaintiffs with pending claims; and with potentially millions of dollars at stake for each victim, many more will emerge. The total amount of damages at issue could be many tens of billions of dollars.

This is the Stratton Oakmont problem all over again, but worse. At least in 1995, only companies that moderated faced liability. Now, any company that makes any “design choice” about how to present user content — which is to say, literally every platform on the internet — is potentially on the hook if any harm comes to any user which some lawyer can claim was because they used that service. The lawsuit becomes a weapon regardless of outcome, because the cost of defending yourself is ruinous for anyone who isn’t a trillion-dollar company.

The Encryption Problem: Where “Design Liability” Leads

If the “design choices create liability” framework seems worrying in the abstract, the New Mexico case provides a concrete example of where it leads in practice.

One of the key pieces of evidence the New Mexico attorney general used against Meta was the company’s 2023 decision to add end-to-end encryption to Facebook Messenger. The argument went like this: predators used Messenger to groom minors and exchange child sexual abuse material. By encrypting those messages, Meta made it harder for law enforcement to access evidence of those crimes. Therefore, the encryption was a design choice that enabled harm.

The state is now seeking court-mandated changes including “protecting minors from encrypted communications that shield bad actors.”

Yes, the end result of the New Mexico ruling might be that Meta is ordered to make everyone’s communications less secure. That should be terrifying to everyone. Even those cheering on the verdict.

End-to-end encryption protects billions of people from surveillance, data breaches, authoritarian governments, stalkers, and domestic abusers. It’s one of the most important privacy and security tools ordinary people have. Every major security expert and civil liberties organization in the world has argued for stronger encryption, not weaker.

But under the “design liability” theory, implementing encryption becomes evidence of negligence, because a small number of bad actors also use encrypted communications. The logic applies to literally every communication tool ever invented. Predators also use the postal service, telephones, and in-person conversation. The encryption itself harms no one. Like infinite scroll and autoplay, it is inert without the choices of bad actors — choices made by people, not by the platform’s design.

The incentive this creates goes far beyond encryption, and it’s bad. If any product improvement that protects the majority of users can be held against you because a tiny fraction of bad actors exploit it, companies will simply stop making those improvements. Why add encryption if it becomes Exhibit A in a future lawsuit? Why implement any privacy-protective feature if a plaintiff’s lawyer will characterize it as “shielding bad actors”?

And it gets worse. Some of the most damaging evidence in both trials came from internal company documents where employees raised concerns about safety risks and discussed tradeoffs. These were played up in the media (and the courtroom) as “smoking guns.” But that means no company is going to allow anyone to raise concerns ever again. That’s very, very bad.

In a sane legal environment, you want companies to have these internal debates. You want engineers and safety teams to flag potential risks, wrestle with difficult tradeoffs, and document their reasoning. But when those good-faith deliberations become plaintiff’s exhibits presented to a jury as proof that “they knew and did it anyway,” the rational corporate response is to stop putting anything in writing. Stop doing risk assessments. Stop asking hard questions internally.

The lesson every general counsel in Silicon Valley is learning right now: ignorance is safer than inquiry. That makes everyone less safe, not more.

The Causation Problem

We also need to talk about the actual evidence of harm in these cases, because it’s thinner than most people realize.

The California plaintiff, known as KGM, testified that she began using YouTube at age 6 and Instagram at age 9, and that her social media use caused depression, self-harm, body dysmorphic disorder, and social phobia. Those are real and serious harms that genuinely happened to a real person, and no one should minimize her suffering.

But as Goldman noted:

KGM’s life was full of trauma. The social media defendants argued that the harms she suffered were due to that trauma and not her social media usage. (Indeed, there was some evidence that social media helped KGM cope with her trauma). It is highly likely that most or all of the other plaintiffs in the social media addiction cases have sources of trauma in their lives that might negate the responsibility of social media.

The jury was asked whether the companies’ negligence was “a substantial factor” in causing harm. Not the factor. Not the primary factor. A substantial factor.

This standard is doing enormous work here, and nobody in the coverage seems to be paying attention to it. In most product liability cases, causation is relatively straightforward: the car’s brakes failed, the car crashed, the plaintiff was injured. You can trace a mechanical chain of events. There needs to be a clear causal chain between the product and the harm.

But what’s the equivalent chain here? The plaintiff scrolled Instagram, saw content that made her feel bad about her body, developed body dysmorphic disorder? Which content? Which scroll session? How do you isolate the “design” from the specific posts she saw, the comments she read, the accounts she followed?

With a standard that loose, applied to a teenager with multiple documented sources of trauma in her life, how do you disentangle what was caused by social media and what was caused by everything else? The honest answer is: you can’t. And neither could the jury, not with any scientific rigor. They made a judgment call based on vibes and sympathy — which is what juries do, but it’s a terrifying foundation for reshaping internet law.

The research on social media’s causal relationship to teen mental health problems is incredibly weak. Over and over and over again researchers have tried to find a causal link. And failed. Every time.

Lots of people (including related to both these cases) keep comparing social media to things like cigarettes or lead paint. But, as we’ve discussed, that’s a horrible comparison. Cigarettes cause cancer regardless of what else is happening in a smoker’s life. Lead paint causes neurological damage regardless of a child’s home environment. Social media is not like that. The relationship between social media use and mental health outcomes is complex, highly individual, and mediated by dozens of confounding factors that researchers are still trying to untangle.

And, also, neither cigarettes nor lead paint are speech. The issues involving social media are all about speech. And yes, speech can be powerful. It can both delight and offend. It can make people feel wonderful or horrible. But we protect speech, in part, because it’s so powerful.

But a jury doesn’t need to untangle those factors. A jury just needs to feel that a sympathetic plaintiff was harmed and that a deeply unsympathetic defendant probably had something to do with it. And when the defendant is Mark Zuckerberg, that’s a very easy emotional call to make. Which is exactly why this is so dangerous as precedent. If “a substantial factor” is the standard, and the defendant’s internal documents showing employees discussing concerns about safety count as proof of wrongdoing, then essentially any plaintiff who used social media and experienced mental health difficulties has a viable lawsuit. Multiply that by every teenager in America and you start to see the scale of the problem.

Then recognize that this applies to everything on the internet, not just the companies you hate. A Discord server for a gaming community uses a bot to surface active conversations — design choice. A small forum for chronic illness patients sends email notifications when someone replies to your post — design choice. A blog lets readers comment on articles and notifies writers when they do — design choice. A local news site has a comments section that displays newest-first — design choice. Every one of these could theoretically be characterized as “features that increase engagement” and therefore potential vectors of liability.

And the claims of “addiction” are even worse. As we’ve discussed, studies show very little support for the idea that “social media addiction” is a real thing, but many people believe it is. But it’s not difficult for a lawyer to turn anything that makes people want to use a service more into a claimed “addictive” feature. Oh, that forum has added gifs? That makes people use it more! Sue!

Yes, some of these may sound crazy, but lawyers are going to start suing everyone, and the sites you like are going to be doing everything they can to appease them, which will involve making services way worse.

Who’s Not in the Room

There’s also something that got zero attention in either trial: the people for whom social media is genuinely, meaningfully beneficial.

Goldman’s observation on this deserves to be read carefully:

Due to the legal pressure from the jury verdicts and the enacted and pending legislation, the social media industry faces existential legal liability and inevitably will need to reconfigure their core offerings if they can’t get broad-based relief on appeal. While any reconfiguration of social media offerings may help some victims, the changes will almost certainly harm many other communities that rely upon and derive important benefits from social media today. Those other communities didn’t have any voice in the trial; and their voices are at risk of being silenced on social media as well.

LGBTQ+ teenagers in hostile communities who find support and connection online. People with rare diseases who find communities of fellow patients. Activists in authoritarian countries who use social media to organize. Artists and creators who built careers on these platforms. People with disabilities who rely on social media as their primary social outlet. None of them were in that courtroom. None of them had a voice in the proceedings that will reshape the platforms they depend on.

When platforms are forced to “reconfigure their core offerings” to reduce liability — which could mean anything from removing algorithmic recommendations to eliminating features that enable connection and discovery — the costs won’t fall evenly. Meta and Google will survive. They’ll make their products blander, less useful, and more locked down. It’s the users who relied on those features who will pay the price.

Bad Defendants Make Bad Law

Both Meta and YouTube have said they will appeal, and they have plausible grounds. The product liability theory applied to what are fundamentally speech platforms raises serious First Amendment questions. The Section 230 issue — whether “design choices” about presenting third-party content are really just editorial decisions that 230 was designed to protect — will almost certainly get a serious look from appellate courts. The causation questions are genuinely unresolved.

But appeals take years. In the meantime, every plaintiffs’ attorney in America now has a proven template for suing any social media platform. The bellwether structure means more trials are already scheduled — the next California state court one is in July, with a similar federal case starting in June. The litigation flood has started, and 230’s procedural protection — the ability to get these cases dismissed before they become multi-million-dollar ordeals — has already been neutralized.

Goldman is right to frame this as existential:

There are thousands of other plaintiffs with pending claims; and with potentially millions of dollars at stake for each victim, many more will emerge. The total amount of damages at issue could be many tens of billions of dollars.

None of this means the harms kids face don’t deserve serious attention. They do. There are ways to address legitimate concerns about teen mental health that don’t require treating every editorial decision about third-party content as a defective product — but they involve hard, unglamorous work, like actually funding mental health care for young people.

But suing Meta is more fun!

Meta can absorb tens of billions. But this legal theory doesn’t apply only to Meta. It applies to every platform that makes “design choices” about how to present content — which again, is every platform. The next wave of lawsuits won’t just target trillion-dollar companies. They’ll target anyone with a recommendation algorithm, a notification system, or an infinite scroll feature, which in 2025 is basically everyone.

We got Section 230 because Congress looked at the Stratton Oakmont decision and realized the legal system had created a set of incentives that would destroy the open internet. The incentive now is arguably worse: not just “don’t moderate” but “don’t build anything that makes user-generated content engaging, discoverable, or easy to access, because if someone is harmed by that content, the way you presented it makes you liable.”

I get why people are cheering. Meta is a bad company that has made bad choices and treated its users badly. Zuckerberg has earned most of the contempt coming his way. Kids have been genuinely harmed, and the instinct to want someone powerful to be held accountable is about as human as it gets.

But bad defendants make bad law. And the law being made here — that platforms are liable for the “design” of how they present the third-party content that is their entire reason for existing — will not stay confined to companies you don’t like. It will be used against every website, every app, every platform, every small operator who ever made a choice about how to display user-generated content. It will make Section 230 a dead letter without anyone having to vote to repeal it. It will create a legal environment where only the largest companies can afford to operate, because only they can absorb the cost of endless litigation.

What you won’t get out of this is anything approaching “accountability.” You’ll get overly lawyered-up systems that prevent you from doing useful things online, and eventually the end of the open internet — cheered on by people who think they’re punishing a bully but are actually handing the bully’s biggest competitors a death sentence.