Report from Digital Watch
In Brief – Governor Kathy Hochul added New York to the list of states that is trying to require social media platforms to display cigarette package-style warning labels that describe their services as employing dangerous “addictive features” such as algorithmic recommendations and a so-called “infinite scroll” that shows content without a user’s manual input. Saying, “New Yorkers deserve transparency,” Hochul said the law is intended to safeguard young people against potential mental health harms linked to excessive social media use. Warnings will show the first time a user activates one of the targeted features and will then reappear at intervals.
Context – Many states are passing laws regulating how social media sites serve young people, often prohibiting platforms from employing so-called addictive features when users are teenagers. Most of the state laws are getting blocked by federal judges, often on First Amendment grounds. The Supreme Court’s 2024 Moody v. NetChoice decision had five justices describing social media platforms as clearly expressive activity strongly protected by First Amendment, setting a seemingly high legal bar, but the Fifth Circuit Court of Appeals, which has consistently backed social media regulation, allowed a Mississippi law regulating teen use of social media to stand and the Supreme Court refused to overturn that order while litigation proceeded, creating real uncertainty about a High Court that has been squirrely on internet cases. New York’s social media warning label law, like those from Minnesota, California and Colorado, raises First Amendment issues involving government compelling speech. Colorado’s labeling law was recently blocked by District Court Judge William Martinez. However, New York had better luck defending its law requiring retail companies to post warning labels when they use “personal data” in pricing decisions, so-called algorithmic pricing, with District Judge Jed Rakof rejecting the National Retail Federation’s effort to block the law as being compelled speech blocked by the First Amendment.