Mental Health and Our Legal System’s “Hierarchy of Harms”

It is hard to read the MDL complaint or to hear Frances Haugen’s testimony without feeling as though something has gone terribly wrong. When harms perpetrated by individuals or corporations are sufficiently egregious, we expect a legal remedy. And indeed, tort law—the law of “private and privately redressable wrongs”—enables our judicial system to hold perpetrators accountable. You may recall, for instance, IKEA’s $46 million and $50 million payments to families whose children were killed by unsafe furniture. Some readers undoubtedly remember the watershed Big Tobacco settlement of 1998, which cost cigarette manufacturers $246 billion. And in recent months, there has been extensive coverage of opioid lawsuits and settlements. 

But not all torts are created equal. The IKEA, cigarette, and opioid cases fall into the dominant category of what Professor Martha Chamallas describes as a “hierarchy of types of injuries and types of damages.” In her words, “tort law values physical injuries and property damage more highly than emotional injuries or relational harms.” She says that it also prioritizes “pecuniary losses (e.g., wage loss and medical expenses) over nonpecuniary losses (e.g., pain and suffering, mental distress, and lost companionship and society).”

In practice, this hierarchy manifests in several ways. First, within the context of intentional infliction of emotional distress claims, Chamallas notes that courts require a high “threshold” of impact for claims of emotional harm. Second, in cases of negligent infliction of emotional distress, many courts require plaintiffs to show “that their emotional trauma had physical consequences” in order to receive damages. Third, states have implemented financial “caps” on the amount of money that plaintiffs can recover for noneconomic losses, which diminishes the appeal and feasibility of pursuing these cases. 

One plausible explanation for this hierarchy might look something like this. Tort law, in its modern form, began to take shape around the turn of the 20th century. Dr. Ellen Holtzman describes how during this period, the prevailing medical perspective taught that mental illness stemmed from “defect[s] in the nervous system.” The attribution of mental illness to “somatic” causes, combined with the pervasive stigma surrounding mental health, contributed to a landscape in which most emotional injuries fell largely outside the mainstream public consciousness. It might therefore seem inevitable that such injuries would be underrecognized in tort law. 

However, this lens glosses over the additional historical context of a corporate-led “tort reform” movement that seeks to limit exposure to tort liability. According to professor Sarah Swan, approximately “thirty-three states have enacted some form of tort reform provisions—everything from legislative caps on damages, immunities for various actors, additional procedural hurdles for plaintiffs bringing lawsuits, and other sorts of miscellaneous measures.” These obstacles make it harder for plaintiffs to bring successful cases. Swan also describes how the tort reform movement advances a calculated narrative that Americans are litigation-happy and that this tendency “unfairly burdens corporations and imposes costs on corporations and society” as a whole. 

And indeed, Chamallas explains how judges exhibit a “hesitation to award damages for mental distress” that they frame “in terms of concerns about disproportionate liability for defendants and the lack of a clear stopping point for liability.” She discusses several areas in which tort reform considerations commonly arise, including workplace litigation and medical malpractice suits. In both of these contexts, the defendants are typically members of powerful industries. Limiting damages protects their interests. 

As a corollary to the tort reform conversation, it is also important to contemplate the normative significance of the hierarchy itself. After all, as Swan notes, “tort reflects social values and what we understand as harms.” Chamallas theorizes that our tort system reflects choices concerning the “contexts [in which] the genuine mental distress suffered by victims is so compelling that it deserves recognition in law;” its habit of disregarding or brushing past mental health harms suggests that these injuries are not “worthy of legal notice.” She further argues that these choices have a lopsided impact on women and people of color. 

As Chamallas implies, our legal system’s tendency to disregard or brush past mental health harms signals that these injuries are not “worthy of legal notice.”

How does this framework map onto social media harms? The MDL complaint begins with a pointed summary of its core allegation: “American children are suffering an unprecedented mental health crisis fueled by Defendants’ addictive and dangerous social media products.” Parsing this single line of text tells the reader much of what they need to know about nuts and bolts of the case. The first point is both obvious and important: this case is about mental health. That fact alone makes it largely unique among lawsuits seeking accountability for mass harms. Second, the language foreshadows the plaintiffs’ core products liability strategy, which advances a theory that social media algorithms are products and the platforms’ creators (Meta, Snap, ByteDance, and Google) bear responsibility for their defects. 

MDL 3047 seems to straddle the hierarchical divisions between Chamallas’ categories of injuries and damages. As Warren describes, the mental health harms in this case—particularly addiction and withdrawal—have “physical manifestations” that range from “throwing things, hitting things, [and] breaking things all the way to tragic forms of self-harm like cutting and suicide attempts.” The plaintiffs also employ a tried-and-true theory (products liability) that generally applies to physical harms, a strategic move that may help to collapse the distinction between Chamallas’ categories for the purposes of the case. 

For sake of clarity, this is not to suggest that the torts hierarchy presents a formal legal barrier to recovery in MDL 3047 or that it would tangibly impede other cases addressing large-scale mental health harms. Instead, Chamalla’s framework is useful in that it pinpoints an undercurrent of American legal culture which necessarily shapes the system’s character and impact. Against the weight of what she characterizes as our legal system’s “skeptic[ism] about the legitimacy or worth of claims of emotional loss or relational injury,” victories for the kids and their families would mark an overdue step toward recognizing the salience of mental health harms. 

The Elephant in the Room: The Section 230 “Liability Shield”

You may already be familiar with Section 230—a now-notorious statutory provision that operates as a “liability shield” for platforms like Facebook. It establishes that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Because the corporations themselves are not publishers or speakers, they are not responsible for user content. Bergman, who represents a number of MDL 3047 plaintiffs, described Section 230 as “a veritable citadel of immunity” in his article. The statute, he summarizes, has been “held to immunize online advertisers of child sex trafficking, platforms that match drug dealers to customers, and networking sites that post messages from recognized terrorist groups promoting and celebrating terrorist acts against civilians.” 

Once upon a time, Bergman implies, the “broad” reach of Section 230 made a lot more sense than it does today. A market-minded Congress passed the statute in 1996. Legislators hoped, he says, that the provision would catalyze web-based innovation and fuel “economic progress.” Of course, in the early days of the Internet, the sheer scale and power of today’s Big Tech would have been unimaginable. 

According to Professor Jonathan Zittrain, who serves as the Faculty Director of the Berkman Klein Center for Internet and Society at Harvard University, in the mid-1990s, “it was easier to say that there are a lot of creative endeavors hatched out of garages that [couldn’t] afford a compliance or content moderation team.” Without Section 230, he says, it would have been much more difficult for them to “get off the ground.” He notes that “it’s a different configuration now, where you have multi-billion dollar companies that could probably take on some level of responsibility and have it as a cost of doing business.”

As Weinstein observes, “we’re 25 years into the Internet, and there’s basically no regulation, and we’re now seeing real harms.”  

In 2023, Section 230 is notable in part because it fails to incentivize the kind of self-regulating corporate behavior that would help to create safer digital environments. Moreover, Facebook and its contemporaries have enjoyed largely deferential treatment from legislators across the board. As Weinstein observes, “[w]e’re 25 years into the Internet, and there’s basically no regulation, and we’re now seeing real harms.” 

This has led to a slew of public advocacy and prominent speeches calling for the government to ‘regulate social media.’ Explanations for inaction include what Time Magazine describes as “America’s strong free speech laws” and the companies’ extensive lobbying efforts (Facebook, for instance, spent over $20 million in 2021). Zittrain speculates that there may also be a “reluctance to kill a goose laying golden eggs,” especially when it comes to U.S.-based social media companies. The prospect of regulation is also particularly thorny within this context because social media is what Weinstein calls “a mixed good….It has positive attributes and negative attributes.” Zittrain expressed a similar sentiment, noting that it is important to consider “to what extent should any of the benefits of the platforms be factored” into potential tort liability regimes. 

In recent years, Section 230 has been subject to heightened bipartisan congressional scrutiny which may spark legislative action. Section 230’s applicability to social media algorithms is also currently before the Supreme Court in Gonzalez v. Google. According to CNBC, The Court could opt for a “narrower reading of the liability shield,” but it seems unlikely that it will overturn the provision. For at least the near future, Section 230 will likely remain the status quo. And unlike Chamalla’s hierarchy of harms, it does function as a formal (and formidable) legal barrier to accountability for social media harms. 

Frances Haugen testifies before the Senate Judiciary Committee in October of 2021. Source: image via C-SPAN (screenshot), public domain.

A Way Around the Elephant?

However, Section 230 doesn’t mean that the behemoths of Big Tech are untouchable. In a law review comment, Alison Zakon illustrates how products liability strategies seem to skirt the Section 230 barrier. While the provision insulates social media companies from lawsuits over user content, such an approach—which MDL 3057 employs—eschews claims regarding particular content and instead focuses on the problematic features of the platforms themselves. As Zittrain describes the distinction, “you’re…not saying this is a speech-related harm where the speech is an element of the harm. [You’re] saying it’s almost like a service or a product and it’s defective.” By way of analogy to print media, he observes that “regulat[ing] ink for safety” would not be “a speech-related restriction.” 

Bergman outlines the three facets of “modern products liability”—“design defect, manufacturing defect, and failure to warn.” Among its causes of action, the MDL complaint includes claims of both design defect (alleging that the design of the social media causes injury) and failure to warn (that the companies failed to warn users of the risks associated with the platforms’ use). 

In today’s world, Warren says, “hold[ing] on to the notion that products have to be . . . something you buy in a brick and mortar store and carry out in a shopping bag is ludicrous.” 

Bergman and others trace the products liability theory for social media harms to Circuit Judge Ronald Gould’s dissent in Gonzalez, which drew upon a dissenting opinion by another judge and the concept of products liability as outlined in the Restatement (Second) of Torts, an influential legal treatise. Warren views the strategy as intuitive—“it doesn’t even stretch the imagination to recognize that these are products. [T]he people that build and design them are called product engineers.” For a country that has a “multi-billion dollar digital economy,” he suggests that it might even be a necessary evolution. In today’s world, Warren says, “hold[ing] on to the notion that products have to be…something you buy in a brick and mortar store and carry out in a shopping bag is ludicrous.” 

Zittrain notes that “the courts have traditionally been very skeptical” of products liability strategies because they see these lawsuits as trying to “avoid 230.” However, “the more that a harm can be articulated independent of speech,” the greater “chance….that maybe a court would recognize that claim.” And that is precisely what this lawsuit seeks to accomplish. If courts prove amenable to the MDL’s products liability approach, the strategy may preempt social media companies’ ability to successfully invoke Section 230 protection—one of their most reliable defenses.

MDL Structure: Another Chink in the Armor?

Beyond MDL 3047’s approach to Section 230, bringing separate lawsuits together in an MDL may bolster individual cases by diffusing costs and enabling kids and families to map their experiences onto more sweeping patterns of impact. 

Structurally speaking, MDLs fall somewhere between traditional single plaintiff litigation and class actions. Several lead attorneys (including Warren, in this case) serve the shared interests of the plaintiffs during the pretrial proceedings, but independent counsel represent each claimant throughout the process as well. Professor Sergio Campos, whose research focuses on complex litigation, explains that both MDLs and class actions fall into the category of “collective or aggregate procedures.” However, a key distinction between the two kinds of lawsuits is that “each case within an MDL retains its separate identity.” 

Class action plaintiffs hitch their wagons to the same star and rise or fall together, meaning that they win, lose, or settle as a group. MDL plaintiffs, by contrast, partake in the collective process without binding their fates. It is entirely possible that some individual suits will be dismissed while others proceed to trial. Ultimately, each case will sink or swim on its own merit. 

Both class actions and MDLs have certain advantages over single plaintiff litigation. According to Campos, class action and MDL plaintiffs “get to share the costs of common investments in the case.” They can “spend more money, hire better experts, [and] do more research than [they] otherwise would in individual action.” 

Traditional lawsuits can also dilute the power of the plaintiffs because each individual has to make their case in a relative silo. “[A]d hoc” collaboration is sometimes possible according to Campos, but finding these opportunities “relies a lot on luck or…informal coordination.” As he describes, when cases involve causation, plaintiffs must prove that they “would not have been injured” absent exposure to the product. This can pose a challenge. However, borrowing a few definitions from Kristin E. Schleiter, if plaintiffs can show general causation, i.e. that “a substance [or activity] is capable of causing a particular injury or condition,” it can pave the way to proof of specific causation—that “a particular substance caused a specific individual’s injury.”

Campos explains that in MDLs and class actions plaintiffs comprise something like “a natural epidemiological group,” which may enable plaintiffs to “show patterns in a way that would be difficult in an individual case.” This can go a long way in their efforts to establish both general and specific causation. The master complaint in MDL 3047 provides a wealth of scientific evidence to show trends in kids’ mental health—data that will likely buttress the plaintiffs’ claims.

Swan emphasizes that “the way that you bring a case can absolutely impact how that harm is understood.” She draws a connection to the tobacco litigation of the 1990s: “before the states, as state attorneys general, started litigating against the tobacco companies, many individual plaintiffs tried as one-off cases. And they virtually all failed. The reason why they failed is because they just weren’t able to show the systemic nature of what was happening, and so juries believed it was their individual faults for smoking.” The tide turned, she says, when attorneys general invoked scientific data to show the broader health impacts of tobacco use. 

Through the aggregation of individual cases, Campos says, plaintiffs “become a much more powerful entity.”

Of course, as Campos outlines, “defendants actually benefit from collective processes too” because they offer greater convenience and, depending on the outcome of the lawsuit, can also provide a “certain level of finality.” But, generally speaking, he recognizes that the “benefits for the defendants…never outweigh the costs.” Through the aggregation of individual cases, he says, plaintiffs “become a much more powerful entity.” As the adage goes, they are stronger together. 

A Pathway Forward

Reflecting on the evolution of social media, it feels somehow significant that Section 230 is a few months older than I am. So much has changed in the last 27 years. Our use of technology evolved from landlines and dial-up Internet to Motorola Razrs and MySpace to a tireless influx of content via Facebook, Instagram, Youtube, and Tiktok. The law surrounding these technologies, however, remains stagnant. 

MDL 3047 may mark a turning point. The facts leave little room for legitimate debate about right and wrong. My own perspective aligns with Warren’s sentiment that “the loss and the grief [in this case] is profound, and…the idea that we wouldn’t hold the people responsible to account, to me, is unfathomable.”

Chamallas’ framework provides a useful tool for contemplating the specific injuries outlined in MDL 3047. Mental health harms, which typically fall into Chamallas’ “disfavored” categories, are front and center in the case. Victories for the plaintiffs would push back against the cultural subtext of the hierarchy as a whole. Moreover, the lawsuit’s ‘packaging,’ both in terms of its products liability strategy and the MDL’s structure, may make the case more workable for a legal system built around physical harms—especially one that gives social media companies a lot of leeway via Section 230. 

Any shift, however subtle, toward a greater amenability for claims involving emotional harms and nonpecuniary damages would be important and overdue. Like the technologies themselves, the science around mental health has come a long way in the last few decades. Our legal system must keep pace. 

Any shift, however subtle, toward a greater amenability for claims involving emotional harms and nonpecuniary damages would be important and overdue.

But of course, the real importance MDL 3047 comes back to kids and families. As Warren summarizes, “we’re really talking about a very small set of apps, designed by a relatively small set of people, that completely dominate the minds and attention spans of an entire generation of American kids.” There is a lot at stake. 

Whatever the result of this lawsuit, Zittrain stresses that “it’s incumbent upon those of us who want to improve the situation for kids” to consider the right approach moving forward. Through various “incentives, including legal liability ones,” he says, we have the opportunity to “paint the world we want to see.” 

The following resources either helped to inform the direction of this piece or may be of interest to readers who are looking to learn more. 

Those who have access to Bloomberg Law can review MDL 3047’s master complaint here. 

More information on social media harms:

• Forbes: Meta, TikTok, Others Being Sued. Here Are 10 Ways Social Media Can Hurt Kids’ Mental Health by Bruce Y. Lee 
• Politico: Social media is a defective product, lawsuit contends by Ruth Reader 
• Reuters: Instagram, TikTok teen addiction lawsuits grouped in northern California by Barbara Grzincic
• Today, Explained (Vox): Why parents are suing social media podcast episode featuring Previn Warren 

Scholarship on social media harms:

• Lewis & Clark Law Review: Assaulting the Citadel of Section 230 Immunity: Products Liability, Social Media, and the Youth Mental Health Crisis by Professor Matthew Bergman 
• North Carolina Journal of Law & Technology: Mental Health and Social Media: Analyzing the Shift in Future Liability for Social Media Platforms by McGee Roman
• North Carolina Law Review: Addictive Technology and Its Implications for Antitrust Enforcement by James Niels Rosenquist, Fiona M. Scott Morton, and Samuel N. Weinstein
• Wisconsin Law Review: Optimized for Addiction: Extending Product Liability Concepts to Defectively Designed Social Media Algorithms and Overcoming the Communications Decency Act by Allison Zakon

More scholarship on torts and tort reform: 

• Tennessee Law Review: Female Trouble: The Implications of Tort Reform For Women by Lucinda Finley
• University of Pennsylvania Law Review: The Architecture of Bias: Deep Structures in Tort Law by Martha Chamallas
• The Measure of Injury: Race, Gender, and Tort Law, Martha Chamallas and Jennifer Wriggins 
• Vanderbilt Law Review: Rights, Wrongs, and Recourse in the Law of Torts by Benjamin C. Zipursky

From The [F]law:

• Amer Mneimneh, Surveillance Advertising
• Diana Cao, Video Underground: How Corporations Capture Culture
• Shao Chang, Gig Economy and the Future of Work
• Amy Robinson, The Digital Divide is No Accident
  

From The Systemic Justice Journal:

• Jack Lubin, Stream a Little Dream: How Netflix Turned Our Culture into Content
• Lauren Fukomoto, Hiding in Plain Sight: Knowledge Concealment and Consumer Powerlessness
• Daniel Zaleznik, Facebook and Genocide: How Facebook contributed to genocide in Myanmar and why it will not be held accountable