Season 7, Episode 12: Considering the future of Section 230 (with Ben Sperry)

Apr 7, 2026

Ben Sperry, a senior scholar at the International Center for Law and Economics who studies Section 230 and platform regulation. They discuss recent jury rulings reframing liability as product design, how that could force age‑gating and redesigns, risks of collateral censorship and punitive damages, potential spillover to streaming and search, and how LLMs might be treated under speech laws.

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INSIGHT

Courts Framed Platforms As Product Designers Not Just Publishers

Recent jury verdicts treated social platforms as engineered products whose design (infinite scroll, autoplay, recommendations) caused harm rather than focusing solely on hosted content.
California awarded $6M for product-design claims and New Mexico $375M under consumer protection for predator exposure and deception about safety.

INSIGHT

Section 230 Was Sidestepped By Focusing On Design Conduct

Both courts avoided Section 230 by emphasizing design and conduct rather than third-party speech, allowing product-liability and consumer-protection claims to proceed.
Judges rejected a strict but-for test and accepted that design features could independently cause actionable harm.

INSIGHT

Big Platforms Can Adapt While Startups May Be Squeezed Out

If appellate courts uphold these rulings, litigation pressure could force big platforms to redesign or age gate features, but smaller entrants may be priced out.
Section 230's original role was to prevent ruinous suits that stifle competition and innovation.

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On this week's episode of the podcast, I am joined by Ben Sperry, a senior scholar at the International Center for Law and Economics, to explore the shifting landscape of social media litigation. We dive deep into recent court rulings in California and New Mexico that challenge the historical protections of Section 230 by focusing on product design rather than hosted content (see a recent piece by Ben, "Treating Speech as a Bug, Not a Feature," for more background). Among other things, we discuss:

Why the shift from content-based liability to product design claims might permanently dismantle the protections afforded by Section 230
How the threat of punitive damages may force platforms to implement aggressive age-gating and collateral censorship measures
Whether applying product liability standards to algorithmic recommendation features creates friction with First Amendment principles
Whether smaller tech entrants and startups can survive a legal environment defined by constant litigation and high compliance costs
What the recent jury verdicts against Meta and Google signal for the future of algorithmic curation across the broader internet ecosystem
When the focus on addictive design features like infinite scroll will begin to impact other services like streaming platforms
How generative AI and large language models will be categorized under speech laws if Section 230 remains inapplicable

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