Addiction and Expression

71 Pages Posted: 16 Jun 2019 Last revised: 17 Dec 2019

Date Written: December 17, 2019

Abstract

Addictive products—tobacco, alcohol, gambling, and the like—have been considered legitimate regulatory targets for millennia, a tradition into which both Founding-era and modern America comfortably fits. Expressive products—newspapers, books, movies, and video games—on the other hand, have been considered essentially immune from content-based regulation, thanks to the First Amendment. But what if the content of an expressive product makes it addictive? Which tradition must give in: the ancient ability of legislatures to protect society at large from the wide-ranging impacts of addiction, or the legal shield that has generated a thriving culture of artistic independence?

This Article is the first to explore the question of how the First Amendment should treat intentionally addictive speech. Social scientists indicate that certain behavioral addictions premised on compulsive use of expressive products—in particular, video games and pornography—are real dysfunctions of the brain, explainable in part by the intentional choices of developers and producers to create addictive products. And regulators are beginning to unsteadily lurch into action, without any evidence that they are taking the First Amendment into account. This Article proposes that, under current doctrine, any such regulation would need to satisfy strict scrutiny. It then argues for a departure and a recognition that intentionally addictive expression does not merit First Amendment coverage.

Keywords: video games, first amendment, free speech, addiction, pornography, binge-watching, low-value speech, categoricalism, balancing,

Suggested Citation

Morgan, Luke, Addiction and Expression (December 17, 2019). 47 Hastings Const. L.Q. 197 (2020), Available at SSRN: https://ssrn.com/abstract=3395741 or http://dx.doi.org/10.2139/ssrn.3395741

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