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 then seeks to join nascent state legislative efforts to make addictive design by tech companies the next frontier of public health law. But the threshold, global objections from major social media platforms (including Facebook, Instagram, Snapchat, Tik Tok and YouTube) to pioneering lawsuits for addictive design-related harms:Regarding the litigation over adolescent addiction to social media in federal court and the Cases on social media in California – suggest that state authority to regulate addictive design (through litigation or otherwise) will depend on resolving 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 leading role in safeguarding public health through law, including against inadvertent exposure to addictive products. Under this paradigm states would be authorized 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, typically insists on a “hands-off” approach to online regulation, with broad federal preemption under Section 230 of the Communications Decency Act and often prohibitive constraints under the First Amendment.
In pioneering cases, the platforms argue that the Internet paradigm makes pending lawsuits claiming addiction unbailable, regardless of their merit. On Section 230 and the First Amendment legal theories it advances, states may not regulate addictive content-related design by interactive computer service providers (including social media platforms and some online video game makers), regardless of evidence and how intentional, effective or harmful to children or adults. Not surprisingly, the plaintiffs offer alternative views that would allow for broad state regulation of addictive design.
This article argues that even if courts are unpersuaded by the broader arguments for a public health approach to regulating addictive design, they should nevertheless reject platforms’ efforts to make addictive design a free zone. public health laws. The public health and Internet paradigms can be reconciled as a policy issue because addictive design threatens both public health and online innovation. The public health and Internet paradigms can also be reconciled as a legal matter because even the strong theories of section 230 and the First Amendment, properly understood, leave states with a safe harbor in which to regulate much addictive design. Addictive design claims argue that the platforms engage in what psychologists call “operant conditioning” using content-neutral intermittent reinforcement and variable reward techniques associated with slot machines to foster compulsion in users. These techniques do not necessarily involve content moderation or “editorial expression”; in fact, such techniques are normally hidden from users, who may never realize that they have been influenced by a provider. State regulation of such content-neutral platform activity is not isolated from state public health regulation, even under general theories of the scope of section 230 and the First Amendment. To make the most of this safe harbor, public health researchers studying the harms of addictive design, lawmakers crafting tailored regulatory responses, and courts adjudicating addictive design claims should remain cognizant of the value of separating content-based versus conditioning-based claims about addictive design. claims made in advancing the digital frontier of public health law.