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The Commonwealth of Massachusetts has sued Meta and Instagram over the “design features” of their platform — specifically notifications, ephemeral content, infinite scroll, and auto-play — claiming that they “addict” young users, causing a litany of mental health harms. One of many similar lawsuits brought by other states, this is one of the first to be considered by a state supreme court.

The trial court denied Meta’s motion to dismiss, ruling that Section 230 does not protect against claims that Meta designed its platform in a dangerous way and the First Amendment does not apply because  the Commonwealth’s lawsuit targeted “conduct” and “product design” rather than expression.

FIRE filed a friend-of-the-court brief urging the court to reverse the lower court’s ruling. Our brief argues that the “design features” at issue cannot be separated from the content they convey to users — putting them squarely within Section 230’s protection — and are expressive in their own right and therefore protected by the First Amendment the same as a newspaper’s decision on what format or font to use.