On Oct. 21, a New Mexico state court ordered Meta to pay a staggering $25 billion to the state for violating its consumer protection laws. The state claims in a suit by its attorney general that Meta misrepresented its content moderation and data protection practices in various statements over an 11-year span. And according to the judge, the penalty could have been far worse, as the state could have been awarded up to $219 billion under New Mexico’s Unfair Practices Act.
While most coverage has characterized the suit as a privacy case, the claims the state advanced are fundamentally about speech. In fact, three of the five categories of alleged misrepresentations have absolutely nothing to do with data privacy. Instead, they concern moderation around “hateful, violent, and divisive content,” “misinformation,” and “equal application of Facebook’s policies.” That is, statements like, “We do not profit from misinformation or hate, and we do not want this content on our platforms” and “We do not allow hate speech on Facebook because it creates an environment of intimidation and exclusion, and in some cases, may promote real-world violence.”
Each is based on what speech Facebook allows, what speech it takes down, or whether it treats different speakers in the same way.
The First Amendment does not protect fraud, to be sure. But “hateful, violent, and divisive content” and “misinformation” are incredibly vague and inherently subjective concepts. They lack clear legal definitions and encompass a wide range of constitutionally protected speech. Yet the lawsuit allowed a jury to interpret the terms and somehow evaluate the accuracy of Facebook’s high-level statements about how it tries to moderate content.
To decide whether a statement like “we do not allow hate speech” was false, jurors had to apply their own understanding of those broad terms — then decide whether Facebook applied its policies truthfully and equally, across billions of posts dealing with some of the most contentious political and social issues of the last decade. Again, these exceedingly amorphous concepts mean something different to everyone. What one juror views as hate speech or misinformation may be another juror’s sincerely held opinion. That makes it all but impossible to prove falsity — a necessary element of any fraud case.
Nevertheless, the jury found Facebook committed 43,899,725 violations of New Mexico’s Unfair Practices Act.
43,899,725.
How? By multiplying the 26 statements Facebook made about its policies by the total number of users in the state — and, for some statements, New Mexicans who don’t even have Facebook accounts — regardless of whether the users actually read the statement.
That math is as shaky as the claims against the company. For one thing, many of the statements were not advertising at all. They included executives speaking publicly about how Facebook handles some of the most contested content moderation questions platforms confront. The executives made those statements across 11 years and, as the judge himself noted, they “were not confined to one statement, one speaker, one medium or one aspect of Facebook’s business,” but instead included earnings calls, television interviews, and press conferences. And under the state’s theory, every additional person who might have heard it served as another violation. The larger the audience, the larger the ultimate penalty.
