EPIC Leads Coalition of Tech Accountability Groups and Legal Scholars in Telling Massachusetts’ Highest Court to Deny Meta Section 230 and First Amendment Protections for Addictive Design 

Last week, EPIC, Common Sense Media, Cybersecurity for Democracy, the Tech Justice Law Project, and thirteen legal scholars of digital rights, Section 230, and the First Amendment, filed an amicus brief in Massachusetts’ Supreme Judicial Court explaining why Section 230 and the First Amendment do not block Massachusetts’ lawsuit against Meta for purposefully designing its platforms to addict kids. 

The Massachusetts Attorney General filed the action against Meta in 2023, alongside a similar action against TikTok. Attorneys general in many other states have filed similar actions. In October of 2024, a Superior Court judge in Suffolk County denied Meta’s motion to dismiss in an excellent opinion that correctly applied Section 230. Meta appealed, however, inviting Massachusetts’ Supreme Judicial Court to overturn the lower court’s decision and adopt a reading of Section 230 that would broadly immunize tech companies from all manner of harmful conduct completely unrelated to Section 230’s purpose. 

EPIC and its coalition partners submitted an amicus brief similar to the one we filed in the Ninth Circuit earlier this year in California v. Meta. The brief explains that the purpose of Section 230 was to prevent the “moderator’s dilemma,” which forces internet companies to choose between moderating content in an overly censorious way, not moderating at all, or stopping hosting user-generated content entirely. The brief demonstrates that the addictive design claims do not put Meta into the moderator’s dilemma as the company could choose alternative designs that mitigate the harm to kids without touching user content. The brief also explains that denying Section 230 protections to Meta here would not break the internet, but rather would improve the quality of social media platforms for consumers. 

The coalition’s amicus in Massachusetts v. Meta also argues that the First Amendment does not bar Massachusetts’ lawsuit. Specifically, the brief explains that the Supreme Court’s recent decision in Moody v. NetChoice was extremely narrow in scope, and pointedly refused to adopt Big Tech’s desired rule that all decisions companies make to select and display content online are expressive. In essence, the coalition spelled out to the Court that, unless the conduct at issue in the case is a company’s enforcement of its content moderation rules, companies cannot use Moody to argue that their conduct is expressive. 

EPIC routinely files amicus briefs in cases involving the First Amendment and Section 230’s application to platforms’ harmful design decisions.