For years, the fight over speech on the internet was supposed to happen where Americans could see it: in Congress, in state legislatures and, ultimately, in the courts.
But that model is increasingly being replaced by something less visible: regulation through litigation.
A new regulatory front is emerging through civil litigation, state consumer-protection lawsuits and settlements with enormous technology companies. The strategy is straightforward: if lawmakers cannot directly regulate what Americans can see, say or access online without running into the First Amendment, perhaps government lawyers and the trial bar can accomplish much of the same thing through litigation.
The recent settlements involving Meta and TikTok should get our attention. In August, Meta agreed to a multistate settlement worth up to $17.1 billion over allegations involving children's safety, addictive features and the handling of minors' data. Meta admitted no wrongdoing. The agreement nevertheless requires sweeping changes to how Facebook and Instagram operate, including age verification, limits on teen usage and changes to personalized feeds.
Then came Alabama's $100 million settlement with TikTok. The company again denied wrongdoing, but agreed to new restrictions involving minors, including enhanced age verification, usage limits and changes to the user experience. The most eye-catching number may be the $14.2 million in legal fees going to the outside firms representing Alabama, plus $2 million in litigation expenses. That is a pretty impressive payday for lawyers who never had to convince Congress to pass a new law. And that is the larger issue at play.
Technology companies are extraordinarily attractive defendants. They are enormous, highly visible and sitting on mountains of cash. They also operate products used by hundreds of millions of Americans, meaning almost any allegation involving privacy, children, algorithms or content can potentially be turned into a massive legal theory.
My recent argument about deep-pocket liability was that America's civil justice system should not become a mechanism for finding the richest entity in the room and making it responsible for every downstream consequence. The same principle applies online.
There is nothing wrong with holding a company accountable when it actually violates the law. But there is a profound difference between enforcing an existing legal obligation and using litigation to create a regulatory regime that could not survive the legislative process.
The Meta settlement makes that distinction particularly important. Roll Call reported that advocates who have spent years trying to regulate social media see the settlement as a potential roadmap for what is possible.
Privacy and First Amendment advocates, meanwhile, warned that states may be accomplishing through settlement agreements what they could not accomplish through legislation. That should make Americans nervous.
Texas is now providing another important test. Attorney General Ken Paxton sued TikTok under the Texas Deceptive Trade Practices Act, arguing that the company misled parents about the safety of its platform and exposed children to inappropriate material. A Texas court has ruled against TikTok on liability, but the company is appealing. An appellate court has temporarily stayed further trial-court proceedings while it considers TikTok's challenge, which includes First Amendment arguments.
Texas has every right to pursue legitimate consumer-protection claims. But the constitutional questions become harder to ignore when government litigation starts reaching into how a platform moderates content, recommends material, designs feeds or determines who can access particular speech. That is where this stops being merely a fight about TikTok and becomes a fight about who gets to set the rules of the internet.
The danger is not limited to one settlement or one company. Once settlements establish a template, future plaintiffs and government officials can point to those agreements as evidence that certain restrictions are now the industry standard. What begins as a negotiated settlement with one company can become a de facto blueprint for everyone else.
Age verification is perhaps the clearest example. It sounds harmless. Who could object to protecting children? But requiring adults to prove their identity before accessing lawful online speech creates an entirely different constitutional and privacy question. Several state social-media age-verification laws have already run into First Amendment challenges.
There is a legitimate national conversation to have about children, social media and online safety. Parents need better tools. Platforms should be expected to take reasonable precautions. Companies that genuinely deceive consumers should face consequences.
But Americans should be wary of solving those problems by turning the courtroom into an unelected legislature. The First Amendment does not disappear because the defendant is unpopular, the technology is new or the plaintiff's cause is sympathetic. And free speech does not become less important simply because it happens through an app. If lawmakers want to regulate the internet, they should make their case publicly, pass a law and defend it in court. They should not outsource the job to trial lawyers.
Otherwise, the next great social-media settlement may not just determine how Silicon Valley operates. It may quietly determine how Americans speak, read and communicate online.
Julio Rivera is a business and political strategist, cybersecurity researcher, and a political commentator and columnist. His writing, which is focused on cybersecurity and politics, has appeared in major publications around the world.