The Lesson of META's Defeat? Release the Tort Lawyers!
If you want to stop a large business from causing incalculable harm to ordinary people, there is one surefire way to do it: Release the tort lawyers. That was one of the lessons of the settlement this week between Facebook, which now wishes to be called Meta, and 47 states. The states sued the social-media giant for endangering children with addictive practices that undermine their mental health. On Wednesday, Meta settled for $17.1 billion. The settlement is not just about the money. These kinds of settlements never are. As part of the deal, Meta agreed to make massive changes to how it tries to trap kids on its platforms, which also include Instagram. Some of these settlement-imposed restrictions are things you could never achieve through congressional regulation. For instance, Meta agreed to set time limits on how long teens can be logged in to Facebook and Instagram. If you tried to impose that through legislation, somebody would sue the government, and the pro-business, Republican-controlled Supreme Court would likely overturn it. But if Meta is doing it “voluntarily” (if “voluntarily” means at the point of a tort gun), there’s nothing John Roberts can do. So which tech-boy mega-business is going to get the tort treatment next? Every day, the rising Nerd Reich tramples more and more of our jobs, our democracy, our freaking mental health. While the government aids and enables, tort law is beginning to look like our best regulatory hope. Our regulators of last resort. I know that sounds counterintuitive to a lot of people. We’ve been trained to think that regulation requires congressional legislation followed by enforcement by the executive branch. We’ve been trained to think that the threat of criminal penalties, including jail time, restrains the worst instincts of the oligarch class. It’s great when those levers work, but at the end of the day, the only thing the billionaires really care about is money. Tort lawyers take their money. Most big business interests can buy their way out of jail (see, for instance, the precisely zero people jailed for their roles in the 2008 financial collapse). Most congressional legislation merely changes the parameters of how these people make their money. Most antitrust laws… are never enforced. But tort lawyers can reach into these companies—through lawsuits filed by private individuals or state and government institutions themselves—and take money away from these people. Businesses respond to that kind of pressure. Tort litigation works. It worked against the tobacco industry. It’s pretty much the only thing that has ever worked against the fossil fuel industry. It worked against the Sackler family. It was working against the gun industry, until ammosexuals passed a whole law to stop it from working. (I have a whole chapter on this in my book, Bad Law). And I promise you, it’s the only thing that is going to work against Big Tech. The Bad and the Ugly
Inspired Takes
Worst Argument of the Week A man who erected a guillotine outside the Supreme Court was arrested on Tuesday and charged with “transporting a deadly weapon.” The man allegedly drove the guillotine on his flatbed truck from his home in California to Washington, DC. Given that we live in a violent country, it is important for me to say that, as much as I detest the current Supreme Court, I do not support the French solution to our problems. I’m a Truth and Reconciliation guy, not a Committee of Public Safety guy. But I have a number of problems with the arrest of this man, who remains unnamed. First of all, he did not go full Robespierre on the Supreme Court. It’s hard for me to look at a guillotine as a “true threat,” which is the legal standard here. That means I don’t think he intended to cause imminent harm to the Supreme Court justices. It seems to me that he was making a political statement, not a violent threat. It would seem the authorities agree with me on this point, because the man has not been charged with attempted murder, criminal menace, intimidation, or harassment. Instead, they’ve charged him with transporting a deadly weapon—which is where we do not agree. This guy could have carried a fucking assault rifle while driving a Humvee, and nobody would have charged him with anything. If he had been arrested with an assault weapon, he could have appealed to his Second Amendment “rights,” and the Supreme Court—the same one he drove all the way from California to visit—likely would have ordered him released. I cannot countenance living in a world where driving around with a rickety, premodern slicing device is an illegal act, but driving around with a weapon of modern mass warfare is a protected right. Let me put it like this: I’m more comfortable with a First Amendment right to erect a guillotine outside the Supreme Court than I am with a Second Amendment right to stand erect with an AR-15 outside a Walmart. I am 100 percent sure we’d be a safer, more civilized country under my rule than the one promoted by the Supreme Court. And this is where I remind you that the guys who erected a gallows outside of Congress on January 6 while people literally attacked the Capitol threatening to cause harm to government officials have never even been found, much less arrested and charged with a crime. It’s the hypocrisy that bothers me. What I Wrote I explained the Supreme Court’s shadow docket decision allowing Donald Trump to proceed with his plans to restrict mail-in voting ahead of the midterm elections. The court said the case is not “ripe” for review, meaning that, because Trump’s plans have not yet been carried out, the states suing to stop him have not suffered any harm. Since the ruling, the US Post Office has started to implement Trump’s rules. So a collection of states have sued again. Hopefully, the court will not be able to hide behind procedure this time and will have to confront Trump’s plans to rig the election. In News Unrelated to the Current Chaos This has been a tough week in celebrity deaths. We lost music icon, feminist trailblazer, and vaccine benefactor Dolly Parton (whose proud union history John Nichols recounted in The Nation). And we lost the comedic genius Tim Curry. They say bad things come in threes—and for me, the third tragedy of the week was the death of the voice actor Peter Cullen. You might not immediately recognize his name, but if you are of a certain age, you have certainly heard his work. Cullen was the voice of Optimus Prime in both the original Transformers cartoons and the animated feature, as well as the later Michael Bay movies, and the voice of Eeyore in the Winnie-the-Pooh cartoons. The actor was part of the soundtrack of many of our childhoods. Cullen became one of my heroes inadvertently because, when I was a kid, I was sure Cullen (or Optimus and Eeyore) was Black. In a world full of white voices playing white heroes, I was positive that Cullen was one of my people. I thought that his deep baritone came from a Black man. After all, Darth Vader was Black. It made sense to me that they wouldn’t allow the depiction of a Black guy as the actual hero leader, so you could only get away with it if the Black guy looked like a robot. And it made perfect sense to me that the donkey who always knew how things could go wrong was a Black guy at heart. (At the time, I had no idea that the two characters were voiced by the same actor.) I didn’t learn Cullen was white until I was in college and was gifted the magic of a Yahoo search engine. By then, it didn’t matter. I had found other Black heroes and was old enough not to need representation in white media as much. Simply thinking Cullen was Black had served its childhood purpose. So rest in peace, Peter Cullen: a white man who sounded so cool he could have been Black. Elie Mystal is free today. But if you enjoyed this post, you can tell Elie Mystal that their writing is valuable by pledging a future subscription. You won't be charged unless they enable payments.
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