Two separate trials kicked off this week against Meta Platforms in New Mexico and against Meta and YouTube in Los Angeles, with state court judges in both cases trying to navigate how Section 230 of the Communications Decency Act limits evidence about social media content. In Los Angeles, Judge Carolyn Kuhl has tried to maintain an impermeable wall between platform design features and content, while Judge Bryan Biedscheid in Santa Fe has been much more lenient about the use of content in the trial.
As juries in California and New Mexico began hearing evidence this week over alleged social media harms to teens by Meta Platforms and YouTube, there was a key difference: Evidence about content was banned in Los Angeles, but the wall between content and features was more porous in Santa Fe.The reason was somewhat different interpretations by the California and New Mexico state court judges of Section 230 of the Communications Decency Act, the federal law that has provided a stout legal shield to social media and other interactive online platforms, immunizing them from liability for content posted by users. Both trials began Monday (see here and here).
As Meta prepared to put Instagram chief Adam Mosseri on the witness stand Wednesday, Los Angeles Superior Court Judge Carolyn Kuhl warned its lawyers not to ask Mosseri about Instagram’s efforts to blunt bullying, saying that would verge into evidence about content.
If content leaks into the evidence, “then I would have to allow plaintiff to cross-examine and bring in evidence regarding their view that the defendants have not been careful with content restrictions, or taking down bad content, or we might get into CSAM, for goodness sake,” Kuhl said, referring to sexually explicit images regarding children.
Friday, Kuhl praised lawyers for plaintiff K.G.M. for “drawing a good line” between content and features. She warned Meta and YouTube again about their desire to make their case that they are “good corporate citizens” by introducing evidence about attempts to curb bullying or other bad behavior, because it would open the door to evidence about content.
“I’m very concerned about that aspect of the case,” Kuhl said.
In the New Mexico First Judicial District Courthouse in Santa Fe, Judge Bryan Biedscheid has been much more lenient about the use of content in the trial.
Biedscheid denied Meta’s claim of immunity under Section 230 early in the case, allowing it to proceed despite Meta’s attempt to use the law as legal protection (see here).
Meta has attempted to exclude various content brought in as evidence, including videos made by Arturo Bejar, the former director of engineering for Meta, while he tested Meta’s teen safety features. The videos made by Bejar and introduced as evidence show reels of lewd and sexually explicit content of oftentimes scantily clad minors.
Meta, in turn, sought to discredit Bejar’s testimony by questioning why he was “lingering” on the “disgusting” videos (see here).
Meta similarly sought to use a post that a New Mexican educator reported as violating community standards to discredit her testimony during cross-examination (see here).
Alex Parkinson, who is representing Meta, said he had sought to introduce the post because it would have shown that Katherine Salazar, an assistant principal at Wilson Middle School in Albuquerque, over-reported images that did not violate community standards.
However, because Salazar did not recall the image, it was never entered into evidence for the jury to see.
Evidence in the New Mexico trial, brought by state Attorney General Raúl Torrez, is coming in faster than in Los Angeles, where only two witnesses had testified by Friday afternoon (see here). Nevertheless, the lead plaintiff lawyer in the Los Angeles trial, Mark Lanier, said Friday that with testimony expected next week by Meta CEO Mark Zuckerberg on Wednesday and YouTube chief Neal Mohan on Thursday, the 42-hour case remains on track.
Both the New Mexico trial, where five witnesses had testified as of Friday afternoon, and the Los Angeles trial are expected to run well into the month of March.
— Hitting the red line —
While Biedscheid has given lawyers in the New Mexico trial a lot of leeway about content to present, the state hit a clear red line Friday morning when seeking to introduce a video of how to use Instagram in evidence.
Biedscheid temporarily lifted the 48-hour disclosure rule on demonstrative evidence for the state as it was seeking to question its computer science expert, Damon McCoy.
He allowed David Ackerman, a lawyer representing the state, to take a screen recording of his own Instagram feed Thursday after the court received questions from the older jury “asking about DMs and other things that even I'm familiar with,” Biedscheid said (see here).
However, Friday morning Parkinson said he had “serious prejudice concerns” about the video and presented a screen grab to Biedscheid.
Having a video with someone saying she “was grooming a 15-year-old" is just not smart, Biedscheid said, reading from the screen grab. Seeking to include the video was “obviously dumb” and would go against the court’s previous instructions on content, he said.
Ackerman apologized for not realizing that video had been included, and had his team edit the recording before showing it to the jury.
The jury ultimately saw a screening of Ackerman’s Instagram, which opened up on a hockey fan page for the New Jersey Devils. Videos displayed for the jury were primarily of dogs and sports-related content, with an advertisement from pharmacy chain CVS.
— Damages concern in LA —
In Los Angeles Friday, even a single question about content by a Meta lawyer drew an objection — it was overruled — by plaintiff lawyer Lanier, who said that the question “opens the door” to questioning the tech companies about their actions on content.
The issue of drawing a line between content and features has come up almost every day in court. Two days prior, Meta lawyer Paul Schmidt — he was still visibly bruised after a concussion that hospitalized him about 12 days ago and delayed the start of the trial — had told Kuhl that Section 230 shouldn’t bar the company from talking about content protections for bullying and other bad behavior by users.
If the companies present any evidence at all about content, plaintiff lawyer Josh Autry told Kuhl Wednesday, K.G.M.’s side is ready to deploy challenges to what Meta and YouTube failed to do to police content. “It doesn’t matter if you crack a window or kick it down, if it’s open, it’s open,” Autry said of the wall between content and platform features that the trial has observed to date.
Kuhl said that she is thinking “down the road” about K.G.M. seeking punitive damages against Meta and YouTube. The judge said she is worried that if she interprets Section 230 to allow evidence about the platforms’ content practices, it could confuse the jury.
“It’s not so much that I’m excluding your evidence,” Kuhl told the defendants’ lawyers, with the jury not present. If content evidence was presented by Meta and YouTube, “plaintiff would be able to attempt to counter it, notwithstanding Section 230, which would create more of a danger the jury would be confused, and find [the platforms] liable for insufficient content restrictions.”
Kuhl said that because the tech companies would be bringing in “claims they are good citizens, which would have to do with punitive damages,” she would have to be even more careful to not confuse the jury.
Her only choice, Kuhl said, would be “to give an even more complicated limiting instruction to the jury” to help them frame their punitive damages deliberations, if the companies are found liable.
For a judge who is clearly already concerned about overwhelming the jury with too many distinctions about Section 230 and other elements of law beyond the evidence the jurors are hearing, that is not a preferred option.
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