By Henrick Karoliszyn, DSW

New Mexico Attorney General Raúl Torrez has asked a state judge to declare Meta’s social media platforms a “public nuisance” — a legal strategy experts say could dramatically expand how courts regulate technology companies accused of harming children.

The request, filed during the second phase of New Mexico’s landmark lawsuit against Meta Platforms, seeks $3.7 billion in damages and sweeping court-ordered changes to Facebook, Instagram and WhatsApp. Requested changes include restrictions on autoplay, infinite scroll and recommendation algorithms aimed at minors.

The case is being closely watched because the public nuisance doctrine helped drive historic litigation against tobacco companies and opioid manufacturers. If the plaintiffs prevail, the doctrine could become a significant legal tool against social media companies.

New Mexico prosecutor David Ackerman told the court earlier this month that the case “recognizes the scope of the public nuisance that Meta has caused.”

“Across the country, children are begging for help,” Ackerman, an attorney with Motley Rice, told Judge Bryan Biedscheid in opening statements on May 4. “You will hear testimony that confirms there is a mental health crisis, and that it is fueled and caused by social media. We need to fix it.”

A New Mexico jury already found Meta liable in March for violating the state’s consumer protection laws. The jury imposed a $375 million penalty after concluding the company misled users about the safety of its platforms for children.

Now the judge must decide whether Meta’s products constitute a public nuisance under New Mexico law. Depending on the outcome, the ruling could allow courts to order platform redesigns rather than simply impose financial penalties.

Aimed to produce the same result as Big Tobacco

Public nuisance originated in English common law as a criminal remedy for interference with public rights tied to land, waterways and public spaces. American courts later adopted the doctrine but generally confined it to protecting public rights and providing injunctive relief.

That changed in the 1970s when public nuisance was redefined as an “unreasonable interference with a right common to the general public,” broadening its potential application beyond traditional property-based disputes.

This evolution encouraged lawyers to test public nuisance theories in environmental, asbestos, tobacco and firearms litigation, often seeking to address widespread social harms through the courts.

The public nuisance legal theory helped propel tobacco litigation in the 1990s, which culminated in the 1998 Master Settlement Agreement requiring cigarette makers to pay more than $200 billion to states over 25 years, to fund public health programs, and to permanently restrict how they could market their products.

It also contributed to opioid settlements that extracted billions from pharmaceutical manufacturers and distributors.

Legal scholars have been watching the New Mexico case with that history in mind.

“The tobacco litigation of the 1990s ultimately produced not just financial settlements but the Master Settlement Agreement, which imposed permanent restrictions on marketing practices and funded public health programs for decades,” wrote researchers in The Conversation following the March verdicts.

“The public nuisance theory in the New Mexico case is designed to produce an analogous structural outcome for social media.”

META could ‘very well be characterized as a public nuisance’

Attorney W. Scott McCollough said the allegations against Meta fit within traditional definitions of the legal theory.

“Based on what I understand the factual assertions to be and what social media platforms have been said to have done, this could very well be characterized as a public nuisance,” he said.

McCollough pointed to New Mexico’s public nuisance law, defined as knowingly creating or maintaining anything without lawful authority that injures public health, safety, morals, or welfare, or interferes with public rights.

Unlike claims brought under consumer protection laws, public nuisance actions are primarily aimed at stopping harmful conduct rather than solely recovering monetary damages, he said.

A court may order remedies such as health and safety warnings, independent monitoring or changes to platform practices. However, McCollough cautioned that judges may be reluctant to impose sweeping requirements that effectively place the courts in the role of governing industry mandates.

“The difficulty here is that at some point along the continuum, you would have the court become more of a regulator,” McCollough said. “At that point, you move away from law and go into policy. I think the judge here is going to be very careful and not overreach … legislative activity here is more appropriate.”

McCollough said public nuisance claims are relatively novel in the social media context, in part because courts have historically afforded internet platforms broad immunity under Section 230 of the Communications Decency Act.

“It’s not that they’re blocking bad content,” he said of the allegations against social media companies. “They’re actively promoting bad content. It’s the use of the algorithms and other mechanisms that gets them so closely wrapped up with the content itself.”

If courts ultimately permit public nuisance claims against social media companies to proceed, McCollough said the litigation could open the door to significant changes in how platforms are designed and how minors interact with them.

However, McCollough said he expects judges to proceed cautiously rather than impose industrywide regulations from the bench.

Biedscheid has already expressed skepticism about how far judicial authority can extend into technology design.

“I’m probably not the easiest sell on an idea where I would become a one-person legislature, judge and executive branch enforcer of administrative code provisions,” Biedscheid said in court.

‘A profound risk of harm’

The New Mexico lawsuit cites research linking heavy social media use among adolescents to depression, anxiety, sleep disruption and suicidal ideation.

U.S. surgeon general advisories and multiple peer-reviewed studies in recent years have warned that social media may pose “a profound risk of harm” to young users, particularly teenage girls.

During the current trial phase, prosecutors asked the court to require stronger age verification systems, limit addictive platform features for minors and redesign recommendation algorithms that prioritize engagement.

Meta argued the requested remedies are unconstitutional, technologically impractical and beyond the court’s authority.

“Are bars a public nuisance because drinking alcohol is undeniably associated with car fatalities?” Meta attorney Alex Parkinson asked during opening statements. “If individual (social media) users have been hurt, they have a remedy — personal injury cases to cover the mental healthcare or any other care they need. And that is what is happening in other lawsuits right now.”

Company attorneys warned the proposed restrictions could effectively force Meta to shut down Facebook and Instagram in New Mexico if courts mandate state-specific versions of its platforms.

Meta executive Michel Protti testified that several child-safety measures sought by the state are technically feasible.

Protti said Meta would consider requiring parental consent for all users under 18 to switch from private to public accounts, comply with age-assurance requirements, while identifying potential under-13 users by looking for “warning signs.”

Biedscheid said he is considering requiring Meta to install an independent safety monitor, limit notifications for minors during school hours, expand coordination with parents and schools, and strengthen rules blocking sexually explicit or harmful content involving children. He also suggested the company could be ordered to add more prominent health and safety warnings on its platforms.

Still, some legal experts don’t believe these strategies go far enough.

Professor Ari Waldman at the University of California, Irvine, School of Law, said that while the legal approach to transforming social media platforms was “interesting and powerful,” he also called the proposed alterations “pretty ordinary.”

Waldman said:

“Lots of products have warning labels. Do better at ensuring sexually explicit images do not get sent to children? I think everyone should do that. It seems quite reasonable to ensure that the educational environment isn’t disrupted by push notifications.

“The only reason why these minimal steps seem like such a sea change in platform regulation is because we have done so little to date. These platforms are addictive and dangerous. It’s time we start treating them like other products that are addictive and dangerous.”

Meta ‘cannot run from what comes next’

Meta has said it intends to appeal the $375 million New Mexico jury verdict. “We respectfully disagree with the verdict and are evaluating our legal options,” a Meta spokesperson said following the March California verdict.

The company did not respond to a request for comment on the public nuisance phase.

The case’s implications extend far beyond New Mexico. More than 40 state attorneys general and thousands of families and school districts nationwide have filed lawsuits accusing social media companies of fueling a youth mental health crisis through addictive product design.

For Torrez, the stakes extend well beyond the courtroom.

“Meta has spent years dodging responsibility for the damage its platforms cause to children,” he said in April after the court rejected Meta’s attempt to postpone the bench trial. “They failed to get this case thrown out. They lost at trial. Now the court has told them they cannot run from what comes next.”

Written closing statements are due June 12. A final ruling in the public nuisance phase is expected later this year.

Related articles in The Defender

• Meta Agrees to Pay Trump $25 Million to Settle Facebook Censorship Lawsuit
• Zuckerberg Grilled Over Instagram Strategies Allegedly Designed to Addict Kids and Teens
• ‘Addictive Use’ of Screens Linked to Higher Risk of Suicide in Kids, Study Finds
• ‘Dangerous and Reckless’: Meta’s Ray-Ban ‘Smart’ Glasses Expose Sensitive Data
• Meta Deliberately Collects Data From Millions of Kids Under Age 13 — But Doesn’t Want Public to Know

The post New Mexico Wants a Court to Declare Meta a ‘Public Nuisance.’ How Would That Change Platforms Like Facebook and Instagram? appeared first on Children’s Health Defense.

 

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