Meta Settlement, Like Tobacco One, Was End Run Around the 1st Amendment

WASHINGTON - Aug. 26, 2026 - PRLog -- When the Meta trail begin, many pundits opined that litigation would not be able to provide much relief or protection for children, and that legislation might therefore be necessary.  But . . .

The settlement announced today contains many restrictions on Meta which, if imposed by legislation, probably would have been struck down by the courts as violations of Meta's constitutional rights under the First Amendment.

The anti-smoking attorneys who brought litigation in the 1990s - which is increasingly being compared to the current litigation against the social media giants - were able to force the tobacco industry to accept restrictive measures which neither Congress nor state legislatures could have put into place because of the First Amendment.

In short, a small band of individual lawyers and attorneys general was able to achieve with litigation what Congress couldn't do with legislation, notes "The Law Professor Who Masterminded Litigation Against the Tobacco Industry."

He points, for example, to a ban on cigarette billboards - following the ban on cigarette commercials he achieved years earlier - and on the use of cartoon characters such as Joe Camel.

All this and much more were part of the precedent-setting November 1998 Tobacco Master Settlement Agreement, which also led to the dissolution of tobacco propaganda groups including . . .

Public interest law professor John Banzhaf, who won two First Amendment cases involving cigarette commercials, notes that many of the remedies obtained in today's settlement could not be achieved through legislation because of limits on the regulation of speech imposed by the Constitution.

However, where as here litigation forces social media companies to agree to a settlement to avoid what some experts are calling potential "astronomical" judgments - as my colleagues did with big tobacco, says the professor hailed as "a Driving Force Behind the Lawsuits That Have Cost Tobacco Companies Billions of Dollars" - the social media giants can of course waive their constitutional rights, just a criminal defendants do every day, according to Banzhaf.

Plaintiffs in the California case were seeking to require Meta, among other remedies, to remove or disable certain so-called "addictive" design features for teens/young users including: infinite scroll, autoplay, quantification of engagement (e.g., "likes"), ephemeral content, beauty/similar filters, and engagement-optimized algorithms.

But these, and other concessions obtained through today's settlement, arguably impinge on the ability of the platform and its owners to "speak" to its users, and therefore any legislation which sought to impose these restrictions would probably be barred . . .

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