UP IN SMOKE: WHY REGULATING SOGIAL MEDIA LIKE BIG TOBACCO WON'T WORK (YET!).

• Author: McKay, Ian

INTRODUCTION

In May of 2021, Frances Hangen resigned from her job at Facebook. (1) Her resignation was not newsworthy. But what she did after she resigned ignited a firestorm of news articles (2) and numerous Senate hearings. (3) Before leaving Facebook, Ms. Haugen had collected hundreds of internal documents demonstrating Facebook knew its products could be harmful to users. (4) Upon leaving the company, she leaked the files to the Wall Street Journal (WSJ) to be published. (3) Five months after her quiet resignation from Facebook, Ms. Haugen, who earned the title the "Facebook whistleblower," was asked to testify before Congress. (6)

During her testimony before the Senate Commerce Subcommittee on Consumer Protection, Product Safety, and Data Security, Ms. Haugen urged lawmakers to regulate social media companies like tobacco: "When we realized tobacco companies were hiding the harms it caused, the government took action. ... I implore you to do the same here." (7) Ms. Haugen was not the first critic of social media companies to compare the social media industry to the tobacco industry.

In recent years, lawmakers, academics, and tech executives have likened social media companies to tobacco companies. In an email to the WSJ, United States Senator Richard Blumenthal wrote, "Facebook seems to be taking a page from the textbook of Big Tobacco--targeting teens with potentially dangerous products while masking the science in public." (8) In a recent Senate hearing, Senator Blumenthal said, "Facebook has taken Big Tobacco's playbook, it has hidden its own research on addiction, and the toxic effects of its products . . . and it has weaponized childhood vulnerability against children themselves." (9) At the same hearing, Senator Edward Markey also likened social media to tobacco products, saying that "Instagram is that first childhood cigarette, meant to get teens hooked early . . . and ultimately endangering their health. Facebook is just like Big Tobacco, pushing a product that they know is harmful to the health of young people ... so Facebook can make money." (10)

Academics have also likened the harms of social media to the harms of tobacco. In an opinion piece, Joan Donovan and Jennifer Nilsen--who are researchers at Harvard's Shorenstcin Center on Media, Politics, and Public Policy--likened the harms of vaccine misinformation on social media to the harms of second-hand smoke." Writing for the Harvard Business Review, professors from MIT and Harvard argued that social media companies should follow the path of tobacco companies and begin self-regulating. (12)

Even tech executives and venture capitalists have posited that social media and tobacco companies are similar. During an interview in 2018, Marc Benioff--the CEO of Salesforce--argued that social media companies should be regulated like cigarette companies. (13) Benioff said, "I think that you do it exactly the same way that you regulated the cigarette industry. Here's a product: Cigarettes. They're addictive, they're not good for you."" Roger McNamee--an early investor in Facebook--urged that, "[t]he challenges posed by internet platform monopolies require new approaches beyond antitrust enforcement. We must recognise and address these challenges as a threat to public health. One possibility is to treat social media in a manner analogous to tobacco and alcohol, combining education and regulation." (15)

Lawmakers, pundits, and tech executives' assertion that social media should be regulated like tobacco in order to protect American teenagers is oversimplistic. While the comparison makes for a good sound bite for the press, the argument disregards the inherent differences between regulating a physical product that has no constitutional protection and a virtual product that can implicate both users' and social media companies' First Amendment rights. This paper will identify and analyze some of the main pillars of the tobacco regulatory scheme and apply them to social media products. In Part I, I will define social media and provide a summary of documented harms, or lack thereof, that are correlated to teenage social media use. I will then make an argument for why the federal government would be interested in regulating the industry as opposed to encouraging teenagers to remove themselves from the platforms. In Part II, I will provide a brief summary of the tobacco regulatory scheme, both past and present. I will demonstrate how the tobacco regulatory scheme developed over decades and how it has been constitutionally challenged. In Part III, I will analyze two pillars of the tobacco regulatory scheme--age restrictions on access and mandated health warnings--and apply them to social media products. In doing so, I will demonstrate that there will likely be constitutional challenges if either of these provisions were adopted. Finally, in Part IV, I will offer a brief legislative recommendation in order to avoid future constitutional challenges to a potential social media regulatory scheme.

1. SOCIAL MEDIA, TEENAGE USE, AND WHY QUITING Is HARD

   A thorough analysis of the philosophical (and frankly, esoteric) debate surrounding social media definitions is beyond the scope of this paper. (16) Like the statutory definition of cigarettes, (17) a definition of social media should draw upon the common features of popular social media platforms without listing the actual platform themselves. For the purposes of this paper, I will rely on a definition of a single category of social media: social networking sites. (18) danah boyd (19) and Nicole Ellison's foundational work, Social Network Sites: Definition, History, and Scholarship, offers a clear and operative definition for the purpose of this paper. (20) They define social networking sites as "web-based services that allow individuals to (1) construct a public or semipublic profile within a bounded system, (2) articulate a list of other users with whom they share a connection, and (3) view and traverse their list of connections and those made by others within the system." (21) Moreover, boyd and Ellison's definition encapsulates the major social media platforms that American teenagers overwhelmingly use. (22) Without exception, these platforms allow for users to create profiles, follow other users, and view other users' content. (23)

   1. The Harms of Teenage Social Media Use

      A concerted and comprehensive effort to regulate tobacco did not emerge in the United States until after the Surgeon General's landmark 1964 report, Smoking and Health, demonstrated that smoking caused a plethora of diseases and teenage tobacco use was especially dangerous. (24) Unlike the government's research on tobacco, there is not a definitive report assessing the harms of social media on teenagers. Current studies of soeial media and its harmful effects can only demonstrate correlative relationships. However, while there may be spurious factors that impact the relationship between social media and its alleged harmful effects, (25) researchers are finding that social media use likely has some negative impact on teenagers' mental and physical well-being. (26)

      Teenage social media use has been tied to increased feelings of inferiority. Internal Facebook research published by the WSJ has demonstrated that Facebook found that forty percent of teens who used Instagram said they began to feel "unattractive" after using the app. (27) The internal research also found that roughly twenty-five percent of teenage users who stated that they felt "not good enough" trace that feeling back to Instagram. (28) Greg Lukianoff and Jonathan Haidt, in their seminal book, The Coddling of the American Mind, argue that another one of social media's consequences is that teenage girls are now "bombarded with images of girls and women whose beauty is artificially enhanced, making girls ever more insecure about their own appearance." (2) '' Indeed, research has found that females may suffer more from the negative effects of social media use than males. (30) However, for both males and females, the negative impact of social media use on self-esteem is worse than the effects of other media. (31) Researchers have found that adolescents who spend an hour on social media suffer from a greater decrease in self-esteem than those who spend an hour playing video games or general computer use. (32)

      More concerning than increased feelings of inferiority is the rise of depression in American teenagers. After decades of declining rates of depression and suicide among American adolescents, there-was an increase in "depressive symptoms, suicide-related outcomes, and suicide deaths" between 2010 and 2015. (33) These "iGen adolescents" report more mental health issues and experience higher rates of suicide than either Millennials or Gen X'ers did at their age. (34) 2010 also marked an increase in adolescent use of social media and electronic devices and a decrease in "nonscreen activities such as in-person social interaction, print media, sports/exercise, and attending religious services, activities negatively correlated with depressive symptoms." (35) Researchers concluded that this increase in screen time on new media beginning in 2010 impacted adolescents' mental well-being. (36) Jean M. Twenge, who led the previously cited study, further argued in her book, iGen, that:

      The sudden, sharp rise in depressive symptoms occurred at almost exactly the same time that smartphones became ubiquitous and in-person interaction plummeted. That seems like too much of a coincidence for the trends not to be connected, especially because spending more time on social media and less time on inperson social interaction is correlated with depression.'' (7)

      Again, teenage females seem to be suffering more than teenage males. Twenge notes that between 2012 and 2015 the rise in depression increased by twenty-one percent in males whereas depression in females increased by fifty percent--more than...