Author ORCID Identifier

0000-0003-4748-501X

Document Type

Article

Publication Date

2023

Keywords

Addictive design, Public health, Social media, Content moderation

Abstract

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 be-cause 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.

First Page

299

Publication Title

Journal of Free Speech Law

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