Matthew B. Lawrence (Emory University), Public Health Law's Digital Frontier: Addictive Design, Section 230, and the Freedom of Speech, J. Free Speech L. (forthcoming 2023):
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 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—especially 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.