Addictive Design and Social Media: Legal Opinions and Research Roundup

by Matthew B. Lawrence and Avraham R. Sholkoff

This has been a busy year in research and regulation addressing addictive design by social media platforms, marked by advisories or initiatives from the Surgeon General, American Psychiatric Association, and American Academy of Pediatrics that spotlight public health issues related to social media. With many foundational questions still unanswered, scholars across legal academic disciplines — public health, technology, tort, First Amendment, and beyond — are increasingly turning toward these issues.

For those looking to get up to speed, this post shares major recent judicial rulings along with recent legal research.  If we were writing a syllabus for a course on “the law of addictive design,” the cases and articles listed below would be high on the list for inclusion.

First, the judicial rulings. We have tracked seven important cases in which courts have ruled on threshold and/or merits issues surrounding addictive design — especially the applicability of Section 230 of the Communications Decency Act of 1996, which, in stating that no provider of an online platform shall be treated as the “publisher or speaker” of any information provided by another provider, has served as a form of immunity for social media companies regarding content posted by its users.  The coverage and requirements of the First Amendment and the viability of various negligence, products liability, and statutory theories are also considered. Additionally, we’ve included the recent complaint filed by 14 states and Washington D.C. alleging that TikTok exploits and deceives young children through its addictive platform.

We’ve included hyperlinks to the PDF files of the opinions and one of those state complaints for ease of access.

1. In re: Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, 702 F. Supp. 3d (N.D. Cal. 2023). This is a broad multi-district litigation consolidating many addictive design lawsuits.  The Court’s ruling on the platforms’ motion to dismiss on Section 230 and First Amendment grounds partially upheld and partially denied the platforms’ motion.
2. Social Media Cases, 2023 Cal. Super. LEXIS 76992. This also aggregates numerous addictive design lawsuits in California state court. Judge Carolyn Kuhl’s October ruling partially upholds and partially denies the platforms’ motion to dismiss on Section 230 and First Amendment grounds employing what one of us has called the “neutrality triangulation” approach.
3. Social Media Cases, No. JCCP 5255 (Cal. Super. July 19, 2024).  This subsequent ruling in the same California case partially upholds and partially denies the platforms’ motion to strike four public school complaints on Section 230 and merits grounds.
4. Neville v. Snap, Inc., 22ST CV33500 (Cal. Super. Jan. 2, 2024). This is a lawsuit focused on Snap’s alleged facilitation of fentanyl overdoses. The opinion denies the platform’s motion to dismiss on Section 230 and merits grounds.  This is a very scholarly opinion that deeply explores Section 230 and products liability.
5. V., et al. v. Meta Platforms, Inc., et. al, No. X06-UWY-CV-23-5032685-S, 2024 Conn. Super. LEXIS 329 (Super. Ct. Feb. 16, 2024). This is a lawsuit alleging that Snap’s addictive design contributed to sexual assault of a minor.  The court dismissed in full on Section 230 grounds.
6. Patterson v. Meta Platforms Inc., et al., 805896/2023, 2024 N.Y. Misc. LEXIS 2312 (Sup. Ct. Mar. 18, 2024). This is a lawsuit alleging Meta contributed to the racially-motivated killing of shoppers and employees at Tops Friendly Markets on the East Side of Buffalo.  The court denied Meta’s motion to dismiss in full.
7. NetChoice v. Bonta 23-2969, 2024 U.S.App. LEXIS 20755 (9^th Cir. Aug. 16, 2024). The court partly upheld and partly vacated a lower court ruling which itself set aside the California Age-Appropriate Design Code.
8. The People of the State of California v. TikTok Inc., Complaint, (Cal. Super. Oct. 8, 2024). The California Office of the Attorney General filed a complaint in Santa Clara County Superior Court alleging that Tik Tok created a social media application with an “arsenal of addictive-by-design features” which exploits children’s psychological vulnerabilities.

Second, a (non-exhaustive) compilation of legal research:

• Ryan Calo, Digital Market Manipulation, 82 Geo. Wash. L. Rev. 995 (2014)
  • This article examines how the “digitization of commerce” impacts the ability of firms to influence consumers, including by “trigger[ing] irrationality or vulnerability,” and suggests behavioral economics as the best framework for addressing such changes.
• Micah L. Berman, Manipulative Marketing and the First Amendment, 103 Geo. L. J. (2015)
  • This piece highlights connections between marketing and cognitive psychology. It offers examples of “manipulative marketing,” defined as “noninformational marketing that seeks to take advantage of consumers’ cognitive weaknesses and biases” before offering potential methodology for the regulation of such practices.
• Brett Frischman & Evan Selinger, Re-Engineering Humanity (2018)
  • This book examines the impact of “big data” on contemporary society. The authors examine how “techno-social engineering” shapes human behavior and interaction without our consent.
• Kyle Langvardt, Regulating Habit-Forming Technology, 88 Fordham L. Rev. 129, 152 (2019)
  • This article examines how tech developers use strategies designed by the casino industry to create habit-forming products. It also highlights the possibility of regulatory efforts to combat these addictive features as well as potential First Amendment protections.
• James Niels Rosenquist, Fiona M. Scott Morton, Samuel N. Weinstein, Addictive Technology and Its Implications for Antitrust Enforcement, 100 N. C. L. Rev. 431, 441 (2022)
  • This article suggests that antitrust enforcement and regulation that lowers entry barriers could help consumers of social media by increasing competition to produce better quality (rather than just more-addictive) products.
• Gaia Bernstein, Unwired: Gaining Control Over Addictive Technologies (2023)
  • This book asserts that rather than blaming consumers for their addiction to their devices, the blame should be shifted to industry. It also argues why government regulation is necessary to combat addictive design.
• Nita Farahany, The Battle for Your Brain: The Right to Think Freely in the Age of Neurotechnology (2023)
  • The book argues that, amidst technological and neurological advances, a human right to “cognitive liberty” is necessary. The author emphasizes that this right would ensure people could control and protect their own experiences and thoughts.
• Kyle Langvardt, Crypto’s First Amendment Hustle, 26 Yale J. L. & Tech. 130 (2023)
  • This article critiques the arguments of crypto industry attorneys who believe that the First Amendment “immunizes their business from ordinary market regulation.” It highlights how trade associations aligned with the crypto industry have “debased” the First Amendment and warns the judiciary to discredit their arguments.
• Matthew P. Bergman, Assaulting the Citadel of Section 230 Immunity: Products Liability, Social Media, and the Youth Mental Health Crisis, 26 Lewis & Clark L. Rev. 1159 (2023).
  • This article argues for using products liability law to hold social media companies accountable. It discusses these platforms’ prioritization of “user engagement” in current mental health issues faced by American children.
• Ileana Thompson, Influenced into Addiction: Using the Multi-District Litigation Against Opioid Companies As A Framework for Social Media Companies, 76 Fed. Comm. L.J. 37 (2023).
  • This article compares social media companies to opioid manufacturers. It highlights how “dopamine-driven reward models” — similar to those activated by drug use — are manipulated by algorithms of platforms such as Instagram and Facebook to ensure continued usage of their products.
• Nancy Costello et. al., Algorithms, Addiction, and Adolescent Mental Health: An Interdisciplinary Study to Inform State-Level Policy Action to Protect Youth from the Dangers of Social Media, 49 Am. J Law Med. 135 (2023).
  • This article discusses how the algorithms on social media platforms such as Tik Tok “push extreme content to vulnerable youth.” The article proposes that states should require social media companies to submit to “algorithm risk audits” and publicly share the findings.
• Matt Lawrence, Addiction & Liberty, 108 Cornell L. Rev. 259 (2023).
  • This article discusses the interaction between addiction and liberty as well as the legal basis for a fundamental constitutional right to freedom from addiction. The article also highlights that recognition of a right to freedom from addiction supports a compelling state interest in protecting residents from exposure to addictive design without their knowledge or consent.
• Matt Lawrence, Public Health Law’s Digital Frontier: Addictive Design, Section 230, and the Freedom of Speech, 3 Free Speech L. 299 (2023).
  • 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.”
• Brett Frischmann and Susan Benesch, Friction-in-Design Regulation as 21st Century Time, Place, and Manner Restriction, 25 Yale J. L. & Tech. 376 (2023).
  • This article emphasizes the need for online “friction-by-design” regulation through mechanisms such as time delays before posting online. The authors further argue for a new theory which uses time, place, and manner restrictions as a beneficial framework in “balancing individual freedom to communicate with the collective state interest” in ensuring offline and online social order.
• Elizabeth M. Jaffe, Algorithms, Filters, and Anonymous Messaging: The Addictive Dark Side of Social Media, 23 J. High Tech. L. 260 (2023).
  • This article examines recent attempts to impose liability on social media platforms, as well as the increased scrutiny of their newly revealed, highly addictive natures.
• Zephyr Teachout, The Roberts’ Supreme Court’s Decision on Netchoice Was Righteous, The Nation (July 2, 2024).
  • This article examines the Moody v. NetChoice Supreme Court decision, and notes that the opinion indicates openness to consideration of future social media regulation.
• Neil Richards & Woodrow Hartzog, Against Engagement, 104 B.U. L. Rev. 1151 (2024).
  • This article highlights the notion of “engagement” — measuring the time and interactions with an online platform — which the authors view as the “core” element of the internet economy. It discusses the problems with engagement as a business model, and how when companies engage in such harmful conduct, they should be regulated through avenues including privacy, consumer protection, and health law.
• Rebecca Aviel, Margot Kaminski, Toni Massaro, and Andrew Keane Woods, From Gods to Google, 134 Yale L. J. (2024).
  • This article examines the throughline from “gods to Google” and specifically highlights two cases that illustrate how the Supreme Court’s free speech expansionism may endanger technology regulation.

We know we may have missed some sources, but we hope this is helpful to others trying to get up to speed in this space!

Matthew B. Lawrence is Associate Dean of Faculty and Associate Professor of Law at Emory University School of Law.

Avraham R. Sholkoff is a J.D. Candidate at Emory University School of Law.