The Volokh Conspiracy
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Journal of Free Speech Law: "Public Health Law's Digital Frontier: Addictive Design, Section 230, and the Freedom of Speech," by Prof. Matthew Lawrence
The article is here; the Abstract:
A new generation of claims argues that addictive design by social media companies has caused a national mental health crisis, and so seeks to join nascent state legislative efforts in making addictive design by technology companies public health law's next frontier. But the threshold, global objections of leading social media platforms (including Facebook, Instagram, Snapchat, Tik Tok, and YouTube) to pioneering addictive design tort lawsuits—In re Social Media Adolescent Addiction Litigation in federal court and the Social Media Cases in California—suggest that state authority to regulate addictive design (through litigation or otherwise) will depend on the resolution of a conflict between two regulatory paradigms: the public health regulatory paradigm and the internet regulatory paradigm. The public health paradigm prizes federalism, with states historically playing a lead role in safeguarding the public's health through law—including against unwitting exposure to addictive products. Under this paradigm states would be permitted to develop and implement legal responses to an emerging public health threat through their courts and legislatures, as they have done with alcohol, gambling, opioids, and tobacco. The internet paradigm, on the other hand, usually insists on a "hands off" approach to regulation online, with broad federal preemption under section 230 of the Communications Decency Act and often-prohibitive constraints under the First Amendment.
In the pioneering cases, the platforms argue that the internet paradigm makes pending lawsuits asserting addictive design claims non-starters, regardless of their merits. On the section 230 and First Amendment legal theories they advance, states could not regulate content-related addictive design by providers of interactive computer services (including social media platforms and some online video game manufacturers), no matter the evidence and no matter how intentional, effective, or harmful to kids or adults. Not surprisingly, the plaintiffs offer alternative views that would permit broad state regulation of addictive design.
This Article argues that, even if courts are unpersuaded by the broadest arguments in favor of a public health approach to regulation of addictive design, they should nonetheless reject the platforms' efforts to make addictive design a public-health-law-free zone. The public health and internet paradigms can be reconciled as a policy matter because addictive design threatens both public health and innovation online. The public health and internet paradigms can also be reconciled as a legal matter because even strong theories of section 230 and the First Amendment, properly understood, leave states a safe harbor in which to regulate much addictive design. Addictive design claims allege platforms engage in what psychologists call "operant conditioning" by using content-neutral intermittent reinforcement and variable reward techniques associated with slot machines to foster compulsion in users. These techniques need not entail content moderation or "editorial expression"; indeed, such techniques are ordinarily hidden from users, who may never realize they have been conditioned by a provider. State regulation of such content-neutral platform activity is not insulated from state public health regulation even under broad theories of the reach of section 230 and the First Amendment. To make maximal use of this safe harbor, public health researchers studying the harms of addictive design, legislators devising tailored regulatory responses, and courts adjudicating novel addictive design claims should remain mindful of the value of separating content-based addictive design claims from conditioning-based claims made in advancing public health law's digital frontier.
