A California bill that critics say would lead to an avalanche of frivolous lawsuits being filed against social media companies unanimously passed a key California Assembly panel last month.
Assembly Bill 3172, authored by Assemblyman Josh Lowenthal (D-Long Beach), aims to protect minors using social media platforms from psychological or mental harm by mandating that the platforms exercise “ordinary care or skill.”
It passed the state Assembly’s Committee on Privacy and Consumer Protection April 16 despite warnings from tech associations that the measure flies in the face of constitutional protections of free speech, is vague in its provisions and would lead to lawsuits asking for statutory damages of up to $1 million per child.
“This bill would make a social media platform, as defined, liable for specified damages in addition to any other remedy provided by law, if the platform fails to exercise ordinary care or skill toward a child,” an analysis of the bill states.
The measure is needed to ensure that social media companies that are knowingly inflicting the most severe injuries on minors receive a higher level of damages as a way to offer disincentives to prevent such injuries, according to the analysis.
AB 3172 is attracting bipartisan support in the Assembly despite tech associations and coalitions, such as NetChoice and the Chamber of Progress, warning that the bill violates the First Amendment rights of children and ignores research that some children benefit from social media tools and services, while others can face certain health risks from social media use.
“I worry a little bit about exploding litigation that could clog up our courts,” Assemblyman Joe Patterson (R-Rocklin) said on a post on X, formerly Twitter. “But I think the risks to our children are greater if we don’t ask them to exercise ordinary care.”
NetChoice, however, argues that the bill would chill online expression on platforms due to the undefined “harm” to minors the measure attempts to prevent.
“Social media companies will be incentivized to limit the ability to access content on their services – which would both reduce the size of their audience and infringe on the websites’ editorial rights to curate and disseminate content free from government interference,” a letter to committee members by the NetChoice general counsel, Carl Szabo, states.
The bill relies on private litigation to address social media controversies rather than other more concrete actions, such as increasing the number of school counselors, giving more online tools for parents or even waging public service campaigns, according to Szabo.
“AB 3172 is not a child safety bill but rather a massive private right of action proposal which signs over children’s online safety to trial attorneys,” Szabo said in the April 8 letter. “The bill offers zero solutions to the plethora of public health issues it alleges are related to social media use.”
Robert Singleton, the West Coast policy director for the Chamber of Progress, said that mandating online platforms to safeguard children from a broad range of harmful speech would require widespread digital censorship.
“Not only does that censorship impact youth access to critical online resources, but it runs headlong into the First Amendment,” Singleton said in a statement emailed to the Southern California Record. “AB 3172 would compel platforms to arbitrarily decide what content is appropriate for young users, infringing on the constitutional rights of platforms and users and opening the door to endless litigation. Small and new platforms would face crippling legal costs under the bill.”
NetChoice’s Szebo also said the bill’s financial incentives to file lawsuits could have a large impact on free speech.
“By allowing trial lawyers to sue social media companies for significant sums, this bill would impose a de facto tax on speech in direct violation of the First Amendment,” he said.