SUMMARY
- New Mexico’s $25 billion penalty against Meta includes findings over Facebook’s promises to suppress “misinformation” and “hate speech,” categories that encompass constitutionally protected expression.
- The First Amendment contains no general exception for hateful or false speech. New Mexico used consumer-protection law to penalize Facebook’s assurances about suppressing that content.
- Twenty-six statements became nearly 44 million violations by counting their potential audiences, including people who did not use Facebook. Meta says it will appeal.
- The case advances the litigation strategy FFO has documented in which governments and censorship advocates use consumer-protection claims to exert control over online speech.
New Mexico’s $25 billion penalty against Meta includes findings over Facebook’s promises to remove “misinformation” and “hate speech,” bringing its handling of constitutionally protected expression within a state consumer-protection case.
Neither label places speech outside the First Amendment. Americans have a constitutional right to express hateful views, and false statements do not automatically lose constitutional protection. New Mexico used Facebook’s own promises to suppress such material as the basis for findings of consumer deception.
In Matal v. Tam in 2017, the Supreme Court reaffirmed that the First Amendment protects hateful expression. In United States v. Alvarez in 2012, it struck down a law criminalizing false claims of military honors. The Alvarez plurality rejected a general exception for false statements, while the concurring justices likewise recognized that falsehoods retain constitutional protection.
Judge Francis Mathew imposed the penalty on 21 October after a jury found the company liable under the state’s Unfair Practices Act on 25 September. Attorney General Raúl Torrez’s case challenged Facebook’s privacy assurances and its public claims about handling “misinformation,” “hate speech,” and exceptions to moderation rules.
Filed in 2021, the lawsuit followed revelations that Cambridge Analytica had obtained data from millions of Facebook users through a third-party app. New Mexico pursued its own case rather than joining a multistate settlement.
The moderation findings covered ten statements. According to the judgment, the jury found two statements about misinformation, five about hate speech, and three about equal application of Facebook’s rules unlawful and willful.
New Mexico’s own announcement listed findings against assurances that Facebook did not profit from misinformation or hate, removed harmful misinformation, and gave politicians or newsworthy material no special exceptions. Three of the case’s five subject areas concerned moderation rather than data privacy.
One statement at issue said, “We do not profit from misinformation or hate, and we do not want this content on our platforms.” The state treated discrepancies between those public assurances and Facebook’s internal practices as consumer deception.
The three equal-enforcement findings concerned Facebook’s CrossCheck system, under which selected accounts’ posts could remain visible during additional review while ordinary users faced immediate removal once their posts were found to violate the rules.
For the misinformation and hate-speech findings, the state relied on Facebook’s assurances about restricting content that the government could not simply ban under those labels. A platform’s voluntary censorship policy became a means for officials to scrutinize and penalize its handling of protected speech.
The Foundation for Individual Rights and Expression warned on 23 October that such cases let officials use consumer-protection laws to police moderation. Its analysis also challenged the use of subjective categories such as misinformation to establish that a platform’s public statements were false.
FFO has documented the censorship industry’s push to bring platforms under consumer-harm law. At the Cambridge Disinformation Summit, politicians and campaigners compared social media companies to tobacco and opioid manufacturers, seeking to make their design and distribution choices grounds for liability.
Center for Countering Digital Hate founder Imran Ahmed has openly celebrated that strategy. As FFO reported, he described researchers as supplying the evidence needed for legislation, litigation, and enforcement, and hailed lawsuits as a way to hold platforms responsible for what their systems produce.
CCDH Founder Admits Disinformation Researchers Are the Engine of Global Censorship
How 26 statements became nearly 44 million violations
The financial calculation greatly magnifies that threat. The court’s judgment records 26 unlawful representations made between May 2010 and August 2021. They appeared in earnings calls, interviews, public conferences, and Facebook’s own communications.
For each statement, the jury counted either 1,386,648 violations, corresponding to Facebook’s monthly active users in New Mexico in June 2020, or 2.1 million, corresponding to the state’s entire population. The calculation used the reasonably anticipated audience rather than a tally of people shown to have read or heard the statement.
Together with five additional findings, that produced 43,899,725 violations. The judge calculated a statutory penalty of roughly $219.5 billion before reducing it to $25 billion. He also ordered interest at 15 percent annually and reserved a decision on injunctive relief.
These are civil penalties payable to the state, rather than compensation calculated from individual users’ proven losses. The audience-based count means a widely circulated interview or public statement can generate millions of violations without evidence that each person counted actually encountered it.
The privacy findings concerned access to user data and promises to investigate its misuse. The misinformation and hate-speech findings went further, turning assurances about suppressing protected expression into grounds for state penalties. The constitutional concern is that consumer-protection enforcement can pressure platforms to remove more lawful speech.
The Supreme Court addressed that editorial freedom in Moody v. NetChoice in 2024. It explained that selecting and presenting third-party posts can be protected expression, and rejected the view that major platforms’ feed-curation decisions fall outside the First Amendment. It returned the challenges to Florida and Texas laws for further analysis.
The danger of giving officials authority over “misinformation” is already documented. FFO’s investigation of the Biden White House’s COVID censorship campaign showed officials pressing Facebook over vaccine skepticism, satire, and personal accounts of negative vaccine experiences, including material the platform acknowledged was often true.
Enforcing broad promises about misinformation gives the government another means of exerting that pressure. Officials can challenge decisions to leave disputed material online as evidence that the company deceived the public.
Using mandatory disclosures against platforms
Some states already require platforms to disclose how they moderate content. Under the New Mexico approach, officials could demand those disclosures and then use alleged differences between the statements and actual moderation decisions as grounds for enforcement.
The pressure could work in either direction. An attorney general could attack a platform for leaving up supposed misinformation, while another could pursue it for removing users who were allegedly promised equal treatment. Both would gain leverage over speech through claims of consumer deception.
In Europe, FFO has documented how the Digital Services Act backs government supervision of online content with fines of up to 6 percent of global annual turnover. New Mexico demonstrates how U.S. officials can seek enormous penalties over moderation through an existing consumer-protection statute.
Meta has said it will appeal. Its chief legal officer, C.J. Mahoney, described the lawsuit as seeking “to impose a tax on speech to enforce new rules for what people can say online.”
The incentive is to remove more disputed speech to avoid another claim that a promise to fight misinformation or hate was deceptive. Americans’ right to publish that material survives, but the platforms carrying it face government pressure to suppress it.
