Minors and Addiction to Speech and Press

I'm finishing 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. I then turned to arguing that these concerns likewise generally can't justify restrictions with behavior presumptively protected by the Free Speech or Press Clause. Today, I close with the question whether some such restrictions may be upheld when focused on speech that reaches minors.

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Perhaps because of the First Amendment concerns mentioned above, much of the discussion of regulating addictive technologies has focused on regulating use by minors, not by adults.[115]

The Court has generally concluded that minors have largely the same First Amendment rights as adults,[116] with the historically grounded exception of access to sexually themed material.[117] Justice Thomas has recently taken the view that the Free Speech Clause "does not include a right to speak to minors (or a right of minors to access speech) without going through the minors' parents or guardians";[118] but no other Justices have joined him.

In particular, the Court has held that minors have the same rights as adults to engage in political speech, including campaign contributions.[119] Presumably that would extend to consumption of political commentary and other opinion on public issues on social media. Minors also have the same rights as adults to access nonsexual entertainment,[120] including supposedly harmful material such as violent video games:[121]

Minors are entitled to a significant measure of First Amendment protection, and only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to them. No doubt a State possesses legitimate power to protect children from harm, but that does not include a free-floating power to restrict the ideas to which children may be exposed. Speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them.[122]

This logic would presumptively extend, I think, to attempts to protect the young from social media or video game design features that a legislative body (or a court applying common law rules) "thinks unsuitable for them."[123]

To be sure, this caselaw was developed with regard to content-based restrictions, which the Court has long viewed especially skeptically. Perhaps the analysis may differ as to modest content-neutral "manner" restrictions that leave open ample alternative channels. In particular, perhaps the objection to free speech paternalism should be less when we're dealing with attempts to protect minors from their risky choices than with attempts to protect adults.[124]

Still, paternalism—especially when it comes to the First Amendment—is generally the province of the pater (and of course, today, equally the mater). And while the Court has been open to the view that the law may try to facilitate parental control over their children's exposure to speech, it has stressed that this can only support parents' authority, not substitute the state's decision for such authority. To again quote the violent video game case,

[W]e note our doubts that punishing third parties for conveying protected speech to children just in case their parents disapprove of that speech is a proper governmental means of aiding parental authority. Accepting that position would largely vitiate the rule that only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to minors. . . .

[T]he Act's purported aid to parental authority is vastly overinclusive. Not all of the children who are forbidden to purchase violent video games on their own have parents who care whether they purchase violent video games. While some of the legislation's effect may indeed be in support of what some parents of the restricted children actually want, its entire effect is only in support of what the State thinks parents ought to want. This is not the narrow tailoring to "assisting parents" that restriction of First Amendment rights requires.[125]

As with the violent video game case, this suggests that the government might need to use a less restrictive alternative, such as requiring parental controls,[126] or expecting parents to use (if they want to) the parental controls that social media platforms and video game provides already include:

California cannot show that the Act's restrictions meet a substantial need of parents who wish to restrict their children's access to violent video games but cannot do so. The video-game industry has in place a voluntary rating system designed to inform consumers about the content of games. . . . This system does much to ensure that minors cannot purchase seriously violent games on their own, and that parents who care about the matter can readily evaluate the games their children bring home. Filling the remaining modest gap in concerned parents' control can hardly be a compelling state interest.[127]

To be sure, the focus on what minors "bring home," from an era where games were bought in stores, needs to be updated to a time when everything is downloaded. But the basic point remains: Because of the diversity in parental views, laws aimed at shielding minors from constitutionally protected speech have to focus on promoting parental control mechanisms, not on categorically limiting access by minors.

Indeed, the Court held this in Brown while striking down a law that merely limited sales of violent video games to children, and left parents free to buy the games themselves. That law thus already left open room for expressly parentally approved consumption of speech—yet it was still held to be unconstitutional. The Court expressly rejected the view that "the state has the power to prevent children from hearing or saying anything without their parents' prior consent."[128] That suggests that categorical bans on minors' access to certain social media or video game features would be even more clearly unconstitutional.

Of course, none of this is certain. Perhaps the Court will conclude that content-neutral restrictions on, say, infinite scroll are so modest that they pass intermediate scrutiny, even though the content-based restrictions on violent video games failed strict scrutiny.

Or perhaps the 15 years since the violent video game cases have provided, in the Justices' view, more evidence that communications technology poses real threats to children. Maybe the Court today will therefore be more convinced of the need to shield children from supposedly addictive expression than the 2011 Court was as to supposedly violence-promoting expression.

Indeed, three of the Court's currently sitting Justices (Thomas, Roberts, and Alito) were open in Brown to restrictions on minors' access to violent video games, and only two (Sotomayor and Kagan) were in the Brown majority. Maybe some of the new conservative Justices (Kavanaugh, Gorsuch, Barrett, or Jackson) will take the Thomas/Roberts/Alito view from Brown rather than the Scalia/Kennedy view. Likewise, maybe Justice Jackson will side more with her former boss, Justice Breyer, who dissented in Brown, than with the other liberal Justices (Ginsburg, Sotomayor, and Kagan).

Still, there is reason to doubt that the Court—or lower courts, following Brown—will be willing to uphold restrictions on supposedly addictive communications design features, even as to minors, and even as to the content-neutral restrictions.

Conclusion

The government's power to restrict liberty—the liberty of both providers and consumers—in order to prevent addiction has to be sharply limited when the supposed addiction is to First-Amendment-protected material. I have argued that this is true even when speech, press activity, or religious practice is seen as manipulative or fostering of compulsion. And it is true even when the actions affect people's neutrotransmitter systems, as much speech and religious activity likely does.

The matter is especially clear as to religion. It may involve all sorts of techniques and practices that "foster compulsion" to continue in the faith, and to do things that outsiders may see as psychologically and even physically harmful. But the government generally cannot try to restrict such techniques in order to prevent "addiction to religion."

And I think the same is true as to social media platforms' and video games' speech or press activities. There may be some latitude for content-neutral restrictions on some such techniques, especially when the users are minors. But even that is far from certain.

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[115] Lawsuits that sought modifications to the game for all users, including adults, have at times been rejected precisely on the grounds that the government lacks an adequate basis for regulating adult access. See, e.g., Courtright v. Epic Games, Inc., No. 2:‌‌24-CV-04055-BCW, 2025 WL 2319148, at *8 (W.D. Mo. Aug. 11, 2025) ("Preventing future addiction in children is compelling, yet the changes that are requested would apply to all users of the games and is therefore not narrowly tailored for children.").

[116] Brown v. Ent. Merchants Ass'n, 564 U.S. 786, 794–75 (2011) (noting that "only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to them," and citing Erznoznik v. City of Jacksonville, 422 U.S. 205, 212–13 (1975), which made clear that those circumstances related to sexually themed material).

[117] Free Speech Coalition, Inc. v. Paxton, 145 S. Ct. 2291, 2303 (2025).

[118] Brown, 564 U.S. at 821 (Thomas, J., dissenting).

[119] McConnell v. FEC, 540 U.S. 93, 231–32 (2003).

[120] Erznoznik v. City of Jacksonville, 422 U.S. 2015, 212–13 (1975).

[121] Brown, 564 U.S. at 794.

[122] Id. (cleaned up) (largely relying on Erznoznik).

[123] See, e.g., NetChoice v. Carr, No. 1:‌‌25-CV-2422-AT, 2025 WL 1768621 (N.D. Ga. June 26, 2025) (striking down a law regulating children's access to certain social media that use supposedly addictive techniques, on the grounds that it "would dramatically curb minors' ability to speak and access to speech" and that "[t]he Supreme Court has, for decades, affirmed the importance of the First Amendment rights of young people"), appeal pending; see also Computer & Commc'ns Indus. Ass'n v. Uthmeier, No. 4:‌‌24CV438-MW/‌MAF, 2025 WL 1570007, at *16–17 (N.D. Fla. June 3, 2025) (applying much the same logic, even under intermediate scrutiny).

[124] See, e.g., Langvardt, supra note 103, at 148; Computer & Commc'ns Indus. Ass'n, 2025 WL 1570007, at *15.

[125] Brown, 564 U.S. at 802–03 (cleaned up).

[126] See, e.g., In re Soc. Media Adolescent Addiction/‌Pers. Inj. Prods. Liab. Litig., 702 F. Supp. 3d 809, 836 (N.D. Cal. 2023) (allowing addictive design claim to go forward based on a theory that the products hadn't provided adequate parental controls).

[127] Brown, 564 U.S. at 803 (cleaned up).

[128] Id. at 795 n.3. The Court concluded that the state may have "the power to enforce parental prohibitions—to require, for example, that the promoters of a rock concert exclude those minors whose parents have advised the promoters that their children are forbidden to attend." But it concluded that it could not, for instance, be made criminal to admit persons under 18 to a political rally without their parents' prior written consent." Id.