The Volokh Conspiracy
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Addiction to Speech and Press: Content-Neutral vs. Content-Based Restrictions
I'm serializing my forthcoming Emory Law Journal article titled Addiction to Constitutionally Protected Activity: Speech, Press, and Religion. In my earlier posts, I argued that concerns about psychological addiction can't justify restrictions that interfere with behavior presumptively protected by the Free Exercise Clause. In my post yesterday, I argued that these concerns likewise generally can't justify restrictions with behavior presumptively protected by the Free Speech or Press Clause, which includes most aspects of social media and video game interface design. Today, I turn to the question whether some of the restrictions may be upheld on the grounds that they are content-neutral.
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For the reasons given above, content-based restrictions aimed at preventing "addiction" are very likely unconstitutional: They would be judged under strict scrutiny, which "as a practical matter, it is fatal in fact absent truly extraordinary circumstances."[102]
For instance, restrictions on "[d]isplay[ing] personal interactive metrics that indicate the number of times other users have clicked a button to indicate their reaction to content or have shared or reposted the content"[103] target the communication of particular facts, and restrictions on communicating particular facts are content-based.[104] The same is likely true of restrictions on speech that favorably reports the amount of time the user has remained on a site—e.g., "'badges,' 'streaks,' 'trophies,' and 'emojis' given to frequent users"[105]—or that more broadly notifies users about content created by the social media platforms or video games.[106]
Likewise, laws that are justified by a desire to prevent the amplification of "extremist" viewpoints are content-based as well.[107] Same, I think, for laws justified by a concern that excessive use of social media leads to body image problems by exposing one to too many idealized and possibly edited photos of beautiful people.[108]
On the other hand, restrictions on infinite scrolling, autoplay video, or live-streaming are likely content-neutral, so long as they aren't justified by a desire to diminish the spread of certain views: They focus solely on the manner of presenting information, not on what information is presented.[109] The question, then, would be whether the relevant law—whether a statute or applications of common-law tort law[110]—
- advances a "significant government interest,"
- is "narrowly tailored" to that interest, and
- "leave[s] open ample alternative channels."[111]
This sort of "intermediate scrutiny" is a pretty mushy test, and its outcome is hard to predict. But let me offer a few observations.
First, the alternative channels prong is likely to be satisfied for many of the content-neutral restrictions. For instance, if infinite scrolling has to be turned off, viewers will still be able to get access to all the material they want, just with an extra keystroke every several pages. Creators will still be able to reach pretty much the same audience, even if they may lose a few people who stop scrolling earlier than they otherwise would have.
Likewise, the social media platform will still be able to communicate to its users, again even if a few users end up stopping earlier than they otherwise would have. The alternative channels prong doesn't require that the alternative forms of communication be exactly as effective as the restricted ones.[112]
Second, when it comes to narrow tailoring to a substantial government interest, one key question will be whether the government is allowed to try to protect some viewers by restricting (even slightly) the speech options available to others. The Court has generally frowned on what it has seen as "paternalistic" justification for restricting speech. This has been especially explicit for restrictions on commercial speech. Even though the Court has held that "commercial speech can be subject to greater governmental regulation than noncommercial speech,"[113] it has concluded that even there the government may not regulate based on a "paternalistic assumption that the public will use truthful, nonmisleading commercial information unwisely."[114]
To be sure, perhaps courts might distinguish paternalistic rationales under the intermediate scrutiny applicable to content-neutral restrictions from such rationales under the intermediate scrutiny applicable to commercial speech restrictions. But it seems to me that the argument that publishers shouldn't be able to give readers what many of the readers want (more speech, more easily accessible), because some of the readers will consume too much speech and suffer as a result, is hard to reconcile with the general protection offered to speech and press.
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[102] Free Speech Coalition, Inc. v. Paxton, 145 S. Ct. 2291, 2310 (2025).
[103] See supra text accompanying note 66; see also Lawrence, supra note 12, at 332, 347, 356, 359 (likewise noting that some proposed regulations, such as of "dangerous 'challenges,'" are content-based and likely unconstitutional); Kyle Langvardt, Regulating Habit-Forming Technology, 88 Fordham L. Rev. 129, 181 (2019).
[104] See, e.g., Sorrell v. IMS Health Inc., 564 U.S. 552 (2011); Florida Star v. B.J.F., 491 U.S. 524 (1989). They are not viewpoint-based, but strict scrutiny under the First Amendment is required for content-based restrictions even when they are viewpoint-neutral. See, e.g., Reed v. Town of Gilbert, 576 U.S. 155, 168 (2015).
[105] See supra text accompanying note 69.
[106] Even In re Soc. Media Adolescent Addiction/Pers. Inj. Prods. Liab. Litig., 702 F. Supp. 3d 809 (N.D. Cal. 2023), which was open to addictive design claims based on other features, acknowledged this, id. at 837 (cleaned up): "Third, the timing and clustering of notifications of defendants' content to increase addictive use is entitled to First Amendment protection. There is no dispute that the content of the notifications themselves, such as awards, are speech. The Court conceives of no way to interpret plaintiffs' claim with respect to the frequency of the notifications that would not require defendants to change when and how much they publish speech. This is barred by the First Amendment."
[107] "Our precedents have also recognized a separate and additional category of laws that, though facially content neutral, will be considered content-based regulations of speech: laws that cannot be justified without reference to the content of the regulated speech, or that were adopted by the government because of disagreement with the message the speech conveys. Those laws, like those that are content based on their face, must also satisfy strict scrutiny." Reed, 576 U.S. at 164.
[108] See, e.g., First Amended Complaint, Stoudemire v. Meta Platforms, Inc., No. 4:22-md-03047-YGR, ¶¶ 82–90 (M.D. Ala. Nov. 17, 2022).
[109] See Lawrence, supra note 12, at 338–42; Soc. Media Cases, No. JCCP 5255, Lead Case No. 22STCV21355, 2023 WL 6847378, *35–39 (Cal. Super. Ct. L.A. County Oct. 13, 2023).
[110] Common-law negligence and product defect cases that seek to impose liability on speech or press activities are of course subject to First Amendment scrutiny as much as statutory speech or press restrictions would be. See, e.g., Olivia N. v. NBC, 126 Cal. App. 3d 488 (1981); Zamora v. CBS, 480 F. Supp. 199 (S.D. Fla. 1979); Winter v. G.P. Putnam's Sons, 938 F.2d 1033, 1036–37 (9th Cir. 1991).
[111] Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (cleaned up).
[112] See Ward, 491 U.S. at 802.
[113] City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 426 (1993).
[114] 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 497 (1996) (plurality opin.) (citing Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 770 (1976)). The majority opinion in Thompson v. W. States Med. Ctr., 535 U.S. 357, 375 (2002), basically adopted the 44 Liquormart plurality's view.
