TikTok the Tortfeasor: A Framework to Discuss Social-Platform Externalities and Arguments Favoring Ex Ante Mitigations

In recent years, social media platforms have grown increasingly complex in how they invite, intersect with, and influence third-party speech. This complexity lies in stark contrast to the simplicity of the statute that governs those very platforms: Section 230 of the Communications Decency Act. Although Section 230 has cabined liability for platforms in the past, some have advocated for activist judges to deploy tools available to them to hold platforms accountable and mitigate harm to users as research documenting the negative impact of social products on user well-being has matured This Comment reviews Section 230 jurisprudence to develop a novel taxonomy that explicates the statute’s boundaries and provides both an opening for ex post liability and a rough metric for its limits. It divides claims against platforms into three categories—content specific, content dependent, and content agnostic—based on the proximity of the alleged injury to user-generated content and the degree of the platform’s participation. Noting the incentive for plaintiffs to frame claims as content agnostic to evade premature dismissal under Section 230, this Comment also formalizes a remedies test that courts can use to distinguish legitimate contentagnostic claims from those in name only. Armed with this vocabulary, this Comment turns its attention to a number of cases pending against social platforms. Applying the remedies test, it determines that a handful of pending allegations give rise to legitimate content-agnostic claims. Noting that content-agnostic injuries are material but not yet fully understood, this Comment ultimately argues that an ex ante regulatory regime operationalized by an expert agency is better suited to address social-platform externalities than an ex post liability regime. It discusses several reasons to disfavor an ex post regime or favor an ex ante regime before outlining what an adequate ex ante regulatory regime could look like with respect to its mandate, powers, structure, and staffing.