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Hastings Constitutional Law Quarterly

Article Title

Addiction and Expression

Authors

Luke Morgan

Abstract

Addictive products—such as tobacco, alcohol, and gambling—have been considered legitimate regulatory targets throughout American history and for thousands of years prior. Expressive products—such as newspapers, books, movies, and video games—have in the United States 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 power of legislatures to protect society at large from the wideranging 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 research indicates that certain behavioral addictions premised on the compulsive use of expressive products—particularly 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 must satisfy strict scrutiny. It then argues that, more fundamentally, intentionally addictive expression does not merit First Amendment coverage.

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