Addicted to Vagueness: Lawmakers Can’t Regulate Social Media by Vibes
A lawsuit over infinite scroll sounds, at first blush, like a fight over product design. Make the app less sticky. Stop nudging teens to keep scrolling. Turn down the algorithmic dopamine machine.
But the harder constitutional question is whether courts can do all that through broad, after-the-fact liability standards without telling platforms what the law actually requires. The legal world is currently watching a high-stakes collision between two foundational principles: the government’s power to protect children from allegedly “addictive” technology, and the constitutional requirement that laws give regulated parties fair notice of what conduct is illegal. As the Supreme Court has explained, “we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.”
That tension is now coming to a head. Appeals are likely in both New Mexico v. Meta and K.G.M. v. Meta, even as federal courts continue issuing rulings in the NetChoice litigation challenging state social-media laws, including in Arkansas. Together, these cases are exposing a basic fault line in modern tech regulation: Can courts impose liability on social-media platforms under broad “negligence” or “unfair trade practices” theories, or are those standards simply too vague to satisfy constitutional due-process requirements?
The answer appears to turn largely on how courts characterize core platform features, such as algorithmic recommendations, infinite scroll, disappearing messages, autoplay, and push notifications. Put simply, are these features protected First Amendment activity, or merely product design?
That distinction matters enormously. If courts treat these features as protected speech or editorial discretion, then laws targeting them face constitutional scrutiny. Courts must ask whether the law restricts more speech than necessary, and whether the law—or its application—is too vague for regulated parties to know when they are crossing the line.
If, by contrast, courts treat these features as mere conduct, then the First Amendment largely drops out of the analysis. Courts instead presume that businesses have adequate notice of how broad negligence or consumer-protection laws apply to platform design choices.