A view from DC: New Mexico decree treats social media as a digital superfund site

Another remarkable chapter in New Mexico's litigation against Meta just concluded with a meticulous judgment from state court judge Bryan Biedscheid, imposing liability under a first-of-its-kind theory. Like lead paint manufacturers or polluting factories, Meta is being held responsible for the contributions its platforms made to the "public nuisance" of the mental health crisis among young people in New Mexico.

The ruling marks a watershed moment for digital platform liability, yet another such moment in a year that has seemed to be filled with expanding theories of liability for the design choices companies build into their products. Effectively, this new ruling classifies the operational model of some of Meta's platforms as a toxic emission that degrades shared public resources, with measurable impacts to institutions including schools, mental health facilities and law enforcement. 

The evening redness in the feed

The case originated in December 2023, when Attorney General Raúl Torrez filed a complaint asserting that Meta's engagement-optimized architecture was deceptive under consumer protection law and functioned as an active public nuisance. Following Meta's unsuccessful attempt to remove the case to federal court, the state court bifurcated the proceedings into two tracks.

Phase 1 resulted in a jury trial in March 2026, which found Meta liable for the retroactive consumer protection claims. The New Mexico attorney general framed the platform's failure to adequately disclose the predictably harmful mechanics of its product to adolescents as a violation of the New Mexico Unfair Practices Act, the state's UDAP statute. In so doing, the state secured a jury determination that there had been 75,000 instances where young people relied on deceptive claims in their use of the platforms, equating to a USD375 million civil penalty.

Though also based on a relatively fresh theory, phase 1 was a basic deception claim. The jury verdict relied on New Mexico's straightforward consumer protection argument that Meta's representations or omissions failed to accurately disclose the risks associated with its platforms. 

Instead, Phase 2 focused on New Mexico's far more innovative public nuisance theory of the case. 

Before we dive into the law, it may be helpful to reflect on the physical landscape in which this case is taking place to best understand the outcome. As a Coloradan, the culture of New Mexico's arid landscape is probably more salient to me than it is to folks who did not grow up under the resource-scarce conditions of the American West.

The West has long served as a focal point of environmental common law claims. Before the advent of the Clean Water Act or the Environmental Protection Agency, legal theories like public nuisance and the public trust doctrine became relatively well developed in western states as communities responded to the ease with which tragedies of the commons could be brought about. Whether inspired by inequitable water usage, pollution or extracting resources under other people’s land, the case law in these states has a long history of crafting creative remedies to solve collective harms. 

A digital superfund site

A public nuisance, under both common law and the state's statutory definitions, is an unreasonable interference with a right common to the general public. It can come about through any major negative impact to public resources, whether land — the traditional framing — or any other communal resource. The court relies heavily on case law around lead-based paint manufacturers, for example, where public health impacts were distributed but no less meaningful than, say, ruining a waterway.

In this case, the judge concluded based on reams of expert testimony and internal documents that the "widespread adverse impacts" of social media platforms include "feature-connected mental health conditions that afflict tens of thousands of teens and children throughout the state." The pervasiveness of the youth mental health crisis connects directly to public resources because of "the adverse effects of these conditions on their families and communities, and the disruptive effect of these conditions on the school environments in which they are educated and socialized and on the law enforcement and health services systems tasked with ensuring their wellbeing."

The court and the jury found plenty of evidence to connect addictive design features and other features that facilitate problematic interactions between adults and children to the mental health crisis in New Mexico.

To be liable under public nuisance theory, it doesn't matter that the company's platforms are not the only platforms contributing to the mental health crisis. Applying the polluting factory analogy — which the judge repeatedly mentions, sardonically, was first brought up by Meta itself in its defensive filings in order to try to limit remedies — he concludes "Meta's platforms substantially contribute to the emissions that create risks of harm to the surrounding community, including risks of sexual exploitation and psychological harm."

Neither does it matter that the observed mental health crisis has many other root causes besides screentime and social media usage. Just like the plaintiff with an eggshell skull in tort law, the court reminds us that the defendant must take the plaintiff as he finds him. "The fact that New Mexico teenagers may, in general, experience threats to their mental health and safety more than teenagers in some other states does not relieve the creator of a public nuisance of its responsibility to abate the harm it causes."

Finally, it also does not fully matter that the judge found evidence that the company "knowingly" engaged in conduct that contributed to these harmful outcomes. Although the statutory version of public nuisance requires knowledge, the common law does not, and the judge found both to apply in this case.

The remedy is the experience

It's important to properly divide the near-billion-dollar price tag of this litigation into its component parts. The jury fine is a penalty for past misconduct. This new verdict is akin instead to funding environmental cleanup efforts. It is an entirely equitable remedy, even though it also comes with a massive financial penalty.

Monetary damages are generally not a permissible remedy for statutory public nuisance under New Mexico law. Instead, the court exercised its equitable power to mandate a USD567 million "abatement fund." This is earmarked to finance a five-year, state-administered remediation structure, encompassing mental health screening, treatment facilities, and educational programs. 

Although it's a fascinating and innovative remedy, the abatement fund is only one part of the court's equitable orders in this case. By law the requirements of this type of court order are limited to "remedial measures for harms shown by the evidence to be currently ongoing, and for highly probable risks of harm."

The judgment embraces many of the remedies the state argued for, but also rejects many others. In the end, this leads to a fascinating set of judge-imposed mandatory restrictions, which sometimes track onto existing changes Meta has already implemented, sometimes track new legislative requirements, and sometimes create new obligations. In brief, here is the overall structure:

Usage and engagement restrictions

• Disable push notifications for accounts belonging to known or estimated users under age 18 overnight and during academic hours. Direct messages from established connections and emergency security alerts are exempted.
• Hide public "like counts" by default for all minor accounts, absent parental consent. 
• Impose a hard time limit on usage, restricting users under 18 to a maximum of 90 hours per month combined across Facebook and Instagram.

Child exploitation and communication controls  

• Set privacy defaults for who can see social media accounts, limit minors from showing up in search results.
• Never recommend minors to adult users for connection.
• Implement enhanced safety interventions, including alerts for minors and a strict one-strike ban policy for adult perpetrators.
• Human reviews of exploitation reports must take place within 48 hours.
• Instagram messages, which are currently not end-to-end encrypted in contrast with Facebook's messaging, must stay that way throughout the abatement period.

Generative AI chatbot guardrails

• Prevent users under 18 from engaging in romantic or sexualized interactions with chatbots.
• Prevent adult users from using chatbots to simulate or discuss romantic or sexual interactions involving minors.

Age assurance protocols

• Develop a dedicated predictive machine-learning model within two years to identify users under age 13, while navigating data constraints imposed by COPPA.
• Require proof of age for suspected under-13 accounts and flag unverified profiles for deletion within 30 days. Accounts with ambiguous age signals must default to the lower suspected age bracket until verified.
• Collaborate with educational institutions to maintain a dedicated reporting portal for school administrators to flag suspected underage accounts.

Law enforcement integration and research access

• Conduct human review of all New Mexico CyberTip reports containing new CSAM before submitting them to the National Center for Missing & Exploited Children to reduce nonactionable referrals.
• Fund semiannual local law enforcement training, maintain a dedicated point of contact for the state's Internet Crimes Against Children unit, and improve its baseline CSAM detection rate by at least 5% over five years. 
• Maintain research access through the Meta Content Library API under governance by university institutional review boards rather than internal corporate approval.

The timing of this order comes about just as the Senate yet again voted the Kids Online Safety Act and other youth safety bills out of the Commerce Committee this week. Many of the usage and engagement restrictions in the court order will be familiar to those watching KOSA and other kids' privacy and safety legislation — including existing legal mandates at the state and international level. 

But in the form of injunctive remedies, many of these take a more rigid form than the flexible and risk-based duties that would be imposed under a law like KOSA. Nevertheless, in many instances the judge points to areas where legislative intervention would be necessary to change structures, like addictive feeds, where he recognizes imposing unique requirements on Meta could have anticompetitive impacts in the social media space.

If youth mental health is a common resource, everyone has a shared interest in finding ways to improve it. Neither judges nor lawmakers will let us forget this responsibility.

Please send feedback, updates and bedtime notifications to cobun@iapp.org.