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SACRAMENTO – After the Assembly’s Privacy and Consumer Protection Committee recently voted 11-0 to support a far-reaching, speech-quelling, lawsuit-promoting bill in the name of protecting “the children,” Assembly member Joe Patterson, R-Rocklin, posted this on X: “The most simple bill ever and I was pleased to support it after a lot of heartburn. All the bill says is companies are liable if they don’t ‘exercise ordinary care or skill towards a child.’ Do you disagree?”
Well, yes, I disagree, but more on that in a moment. When asked by a reporter about his gut reaction, Patterson doubled down: “I worry a little bit about exploding litigation that could clog up our courts. But I think the risks to our children are greater if we don’t ask them to exercise ordinary care.”
I’m not picking on Patterson because he’s a bad guy. Quite the opposite. I’m quoting him because he’s one of the more level-headed lawmakers in the Capitol. If legislation this nefarious gains the imprimatur of someone this thoughtful, then supporters of a free and open internet are in for a long and difficult slog. I do agree that the bill is simple, though. Much bad legislation is gummed up in pages of fine print, but single, poorly drafted sentences can be dangerous, too.
Here is California Assembly Bill 3172’s simple text: “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.” Ordinary care is defined, per the Legal Information Institute, as “the standard of care where a reasonable person would exercise in the same situation or under similar circumstances.”
That does sound so reasonable. But – and it’s generally true that you can ignore everything a person says before the “but” – the measure will lead to “exploding litigation” that apparently was the cause of Patterson’s burning gut. When it comes to free discussions, online or otherwise, it’s impossible to determine a level of ordinary care. Different people (and children are people who also enjoy speech protections) have different reactions when faced with uncomfortable ideas and information.
How can a social-media company comply with that vague concept on platforms that cater to millions of users and involve billions of interactions? I’ve known young people with thick skins and inquiring minds who benefit from perusing reams of information on websites – and others who act like crushed snowflakes when they stumble upon something that challenges their cherished assumptions.
Social-media platforms will have little choice but to restrict access to teens, and limit and increasingly police content. It’s a form of prior restraint. “(B)y leveling millions of dollars’ worth of damages for editorial decisions that could be considered harmful to a child, AB 3172 effectively chills private speech,” notes First Amendment attorney Jess Miers in an X post. And, she adds, that’s true even if the bill merely affects the platform’s design (rather than the moderation) given such designs determine what users see.
If it becomes law, any child who experiences any potential harm (real or imagined) from viewing a troubling image (war, famine, LGBTQ materials, racist rants) can seek up to $1 million in damages from media platforms. Parents have online tools available to them, including filters with endless settings, to help oversee their kids’ online habits. Instead of trusting parents to manage their families, lawmakers from both parties prefer to empower the Nanny State. It truly is a great time to be a lawyer.
These 11 lawmakers – including Southland Assembly members Isaac Bryan, D-Culver City; Diane Dixon, R-Newport Beach; Jacqui Irwin, D-Thousand Oaks; and author Josh Lowenthal, D-Long Beach – really are playing fast and loose with the First Amendment. The courts have repeatedly struck down overly broad internet regulations because they limit social media companies’ freedom to make editorial decisions. The bill targets firms with any users in California.
Perhaps they know what courts will do, which adds cynicism to the list of the bill’s troubling qualities. The measure is backed by groups with a broad agenda. “Unless and until the profit is taken out of harming children, the harm will endure,” says the Children’s Advocacy Institute. “We must change the incentive structure,” notes Parents Against Social Media Addiction. That should have been a clue, at least to Republicans such as Patterson and Dixon.
“Reasonable people, even parents in the same household, might disagree about what is harmful to a particular teen,” notes an opposition letter from prominent tech and free-speech groups. “AB 3172 asks social media platforms to decide what is harmful to every user and exercise ordinary care to prevent that harm. This ambiguity will be impossible for platforms to operationalize.”
So, yes, the bill causes heartburn. Generally, when something other than a burrito creates that reaction there’s good reason for it and it requires some deeper reflection.
Steven Greenhut is Western region director for the R Street Institute and a member of the Southern California News Group editorial board. Write to him at sgreenhut@rstreet.org.
