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Two recent jury verdicts delivered a historic check on Big Tech. In back-to-back cases in New Mexico and California, juries found that Meta endangered children in violation of consumer-protection law and that Meta and Google built platforms engineered to addict young users.
Indiana is part of this push. Attorney General Todd Rokita joined the multistate lawsuit against Meta over its addictive architecture and helped lead the state’s case against TikTok.
Together, these verdicts rest on a simple principle: Children deserve stronger protection from products built to exploit their impulses, and companies that profit by capturing human attention, especially a child’s, should bear responsibility when addictive architecture causes harm.
But state lawsuits like Indiana’s can only do so much. Congress must decide how to hold these companies accountable without breaking the internet for everyone else or violating the First Amendment. So far, the most popular answers miss the mark.
The federal law at the center of the debate is Section 230, passed in 1996 partly to protect early websites from being sued over what users posted. Its core principle still makes sense: A platform shouldn’t be treated as the author of every user comment. The harder legal, and moral, question is whether a shield forged in the dial-up era should also protect deeply opaque algorithms designed to hijack a 13-year-old’s attention. It shouldn’t.
But “just repeal it” is an easy answer — and the wrong one. Without Section 230, platforms would face two bad incentives: Censor anything remotely risky, chilling legitimate speech by ordinary users, or stop moderating altogether to avoid responsibility and liability for what remains. Either path would favor tech giants. Meta can absorb the legal risk with legions of lawyers and moderators; a small Indiana startup can’t. Repeal would only entrench the very companies it aims to reform.
The real work is distinguishing protected editorial judgment from addictive architecture that can be regulated as product design.
Here’s the hard part many reformers overlook: When a platform chooses which posts to show a child, it may be making an editorial judgment, and the Supreme Court has suggested those judgments can be protected speech, like newspapers deciding what to print.
The distinction isn’t between platforms and free speech, or even algorithms and no algorithms. It’s between editorial judgments about what speech to display and non-expressive design features that prolong use, make stopping harder and are built around the vulnerabilities of a still-developing brain. For example, autoplay that forces the next video, unpunctuated feeds that eliminate natural pauses, and notifications engineered to pull a child back online are not themselves messages. The First Amendment may protect what a platform chooses to say. It doesn’t protect the machinery built to make a child unable to stop.
Regulating that machinery — the addictive architecture engineered to override an adolescent’s developing self-control — leaves every editorial choice untouched. That’s product design, not speech. We already hold carmakers and toymakers responsible for designs that injure children. Applying the same standard to products built for kids online isn’t theoretically or legally novel.
This approach also avoids penalizing the content moderation Section 230 was meant to encourage. If filtering content triggers liability, companies will simply stop doing it. A targeted fix would preserve room for platforms to remove harmful content while holding them accountable for addictive architecture.
Central to this reform is establishing a clear duty of care. Just as we require toymakers to protect children from foreseeable physical hazards, tech companies must guard against the predictable psychological harms of their design choices. This standard gives digital platforms clear rules to follow and families a meaningful remedy when tech companies fall short, all without turning everyday content disputes into lawsuits.
The only morally untenable position is to do nothing, knowing how addictive architecture exploits the vulnerabilities of our children. Congress isn’t trapped in a false choice between an unaccountable internet and an overcensored one. It can protect the speech that makes the internet worth defending while stripping immunity for design choices that keep kids hooked. States like Indiana have brought this reckoning to Washington. Now, Congress must finish it: Protect speech, preserve moderation and stop shielding the machinery that traps children online.•
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Whitley is a local civil rights and mass torts attorney.
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