This new article of mine has just been published by the Emory Law Journal. Here’s the Abstract; readers might recall that I serialized an early draft of the article on the blog last year:
Recent statutes and lawsuits have sought to restrict social media or video game design practices that supposedly cause some users to become “addicted.” Are such restrictions consistent with the First Amendment?
This Article begins by asking what would happen if the same arguments were applied to religious practices (whether or not the arguments’ supporters would seek to so apply them). Say some religious practice was viewed as causing emotional or financial harm—e.g., by leading some adherents to feel guilty about their sexuality, to distance themselves from family members, or to give substantial portions of their assets to the religious organization. And say the practice was viewed as stemming from the adherents’ nonrational decisions and emotional vulnerability, coupled with the religion’s fostering intrusive urges and compulsions through techniques of reinforcement and habit formation that exploited features of people’s neurotransmitter systems.
I take it that even so, the Free Exercise Clause would generally preclude restricting those practices. Many religious people derive personal value from their religious beliefs. Religious practice is constitutionally protected. And people often value their own religiously motivated decisions very differently than how other people might value those decisions.
In a few situations, the harm to the religious observer may be so sharp and immediate—or the mechanisms of control may be seen as so obviously improper—that the law may indeed intercede. But any such intercession must be based on more than some general claim of “addiction” to religious beliefs, or assertions of emotional harm or modest financial loss. And that remains true as to minors’ participation in religious practices as well as adults’ participation, at least so long as the minors’ participation is tolerated by parents.
The Article then argues that much the same analysis should likewise apply under the Free Speech and Free Press Clauses to the design of speech products. Here too, the supposedly addictive features can be valuable to many users, even if they are harmful to some others. The design of speech products is presumptively protected by the First Amendment. And people often value features of speech products very differently than other people do. The First Amendment should thus largely preclude restrictions aimed at rescuing people from their own supposed propensity to becoming addicted to features of speech, just as it would preclude restrictions aimed at rescuing people from supposedly addictive religious behaviors.
