Does the First Amendment Protect Supposedly “Addictive” Algorithms? | Eugene Volokh and Jane Bambauer | Hoover Institution

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- Hello and welcome to Free Speech Unmuted.
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My co-host is Jane Bambauer
from the University
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of Florida Law School.
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And I am Eugene Volokh.
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I'm a senior fellow at the
Hoover Institution at Stanford
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University and in emeritus
professor at UCLA Law School.
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We're delighted to have
with us Matt Lawrence,
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who's a professor at Emory
Law School in Atlanta.
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And he has written extensively about,
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about addiction claims related
to things like social media,
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and we wanted to talk to
him about those claims,
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which are currently the
basis of various lawsuits,
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social media addiction claims,
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and video game addiction
claims are the basis
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of various lawsuits as well
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as the various calls for regulation.
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So we wanted to ask him
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what his thinking about such claims is,
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and in particular about the, about
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how the First Amendment
interacts with such claims,
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whether the First Amendment should,
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should protect social media companies
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or video game companies.
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And if so, to what extent
against those claims,
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or alternatively, perhaps
this First Amendment should be
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seen as encouraging those sorts of claims.
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So that's what we're gonna be discussing.
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We're very glad to have Matt with us.
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He has written extensively on the subject.
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Jane and I I think are,
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are writing about it.
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I have an article in press,
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and I think Jane might as well let,
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is say in press in the production process,
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but Matt is, Matt is the one
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who has already written
quite extensively in it.
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So Matt, tell us about your
thinking on the subject.
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- Sure. And Eugene
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and Jane, thank you so much
for having me on the podcast.
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And this is really exciting
and a little intimidating.
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I did not come to this area
as a First Amendment person.
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I've studied, you know, I've,
I love the First Amendment
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and I've litigated First Amendment claims,
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but really my research
interest has been addiction.
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And I was focused for many
years on drug addiction,
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opioid crisis, and drug
addiction more generally.
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I worked at DEA,
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I have article on the
Controlled Substances Act.
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That's where I kind of came to this.
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And I was actually working
on a project focused on
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drug addiction and, and state regulation
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and questions of constitutional
limits on state power
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to prevent a person from
getting a drug treatment.
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So I have a paper on that.
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You, you're addicted to
a drug opioids method.
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There's methadone, it
treats the drug addiction,
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but the state says you
can't have that drug.
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You can't free yourself from
addiction for various reasons.
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I had a paper looking at
constitutional issues under the
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14th Amendment and that that led me
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to state lottery gambling.
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So in Georgia, for example,
you can't gamble legally except
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that you can go to a convenience store
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and play a slot machine that
the state of Georgia put there.
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Or you can download a lottery gambling app
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that the state will allow you to use.
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And I, I became interested in that
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and is, does that raise, do
process claims if the state is
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the one kind of getting you
hooked on some slot machine
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without telling you even
that it might be addictive.
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And once I started working in that space,
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questions about social media come up
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because when you try to draw
lines between sports betting,
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slot machines, social media, Instagram,
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and then we could kind of keep
going drawing lines, novels,
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Sherlock Holmes released as a serial
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and the like, you start
to wonder like what is,
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what is really going on here
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and what are the different
regulatory paradigms?
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So I wound up focusing
on slot machines first
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and then social media second,
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because of claims that social
media apps have been designed
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kind of intentionally to use
tricks that slot machines use
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to foster compulsion.
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So let me first talk about
like the idea of a trick.
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My kids watch a show called Bluey,
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which I love, and there's a bluey episode.
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Where do you know the Claw
when kids go to like a,
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like a pizza parlor,
there's this claw game
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and the mother tries to
do a claw game at home
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and the kid gets to steer
her arm and she just goes
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and grabs the stuffed animal right away
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and the kids immediately
lose their interest.
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But then the father comes along with,
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that's not how you do it.
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Instead the claw, you, the kid goes
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and it grabs the stuffed
animal and raises up.
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It looks like you caught it,
it looks like you caught it,
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it looks like you caught it, and then it
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drops it at the last minute.
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And now the kids are very, very engaged.
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And that's something going into gambling
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studies that's a near miss.
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It's just kind of known
through a lot of research
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that if a person has the perception
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that they almost got the
thing that's more likely
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to get them grabbed in and want
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to not only play in the moment
but come back and play later.
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And there's allegations in
the litigation against social
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media companies that they've
designed similar sorts
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of tricks into kind of way
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that feeds are prioritized
the way they're built.
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And so, you know, just
to give you a few quotes
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that really interested me when
I started going in on this
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former president of Google,
sorry, former CEO of Google said
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that the, the companies
designed the machines
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to maximize outrage
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and they play into the addiction
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capabilities of every human.
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That's Google, CEO,
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Facebook President Sean
Parker said the like button is
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intended to provide a little dopamine hit
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and is a social validation
feedback loop that exploits
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human psychology.
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And then video game programmer
Jamie Madigan says that some
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of these tools are incredibly
effective at making people
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keep playing because of
how the dopamine based
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reward circuitry works.
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And engineer, the
engineer who designed Pull
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and Refresh says they
worry it's addictive.
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And anyway, this got me thinking, hey,
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these are the same sorts
of things I read about in
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how opioid addiction works
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and also how gambling addiction works.
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And when you talk to the neuroscientists,
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they're seeing parallels in the
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way some of these things work.
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So that got me interested
in this space generally.
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Now that has not answered your
question about when can the
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state regulate, you know, there's a lot
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of concern right now about
social media addiction
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and we could talk more about
what I mean by addiction.
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There's a lot of concern
about social media addiction
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and sports betting as well, you know,
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and the sports betting apps
that are proliferating.
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But when the state regulates opioids,
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there is no question about whether
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are expressive, it's just a non-issue.
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So we don't really have
to think about freedom
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of speech in that context.
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But when the state regulates
social media o obviously we
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have to think about whether
or not it's expressive.
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And so we've seen, as you would
kind of predict, we've seen,
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as I understand they want to do, you know,
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industry in the cases that
get brought, you know,
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so there's multi-district
litigation, there's cases probably
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with attorney generals that are
suing social media companies
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saying, you have designed
these products to be addictive
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and you should, you know,
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have liability and things like that.
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That's one set of claims.
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And in those claims that social
media companies say, Hey,
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first Amendment protects this,
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first Amendment protects
this, and the courts are being
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forced to sort it out.
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And here is my understanding,
my understanding of the lay
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of the land, the doctrinal
landscape for when a state
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that is concerned about social
media addiction is kind of
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checked by the First Amendment
and how they regulate.
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So first you have the
question of coverage,
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it's just does the social media, you know,
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does the First Amendment protect at all?
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And on that question, you
have the big picture question
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of whether or not a particular
social media design feature,
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and I mean when, 'cause
that's the moody case from the
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Supreme Court, we're
gonna look at a particular
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design feature one at a time.
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We're not gonna ask, is social media
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expressive for coverage?
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We're gonna ask, is this
design feature expressive?
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And we have to ask, is it expressive?
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And then if it's expressive,
then it may qualify
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for the rest of the First
Amendment protection, as long
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as it's not gambling, because
gambling is not protected
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by the social media, I mean
by the First Amendment.
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So the sports betting app
does not get to go argue
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that the way it's built
prop bets is expressive.
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That, that there's just
an exemption for gambling.
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Now I think that with smart
thinkers like you two,
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we might get to a place where
we can have a unified approach
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where gambling gets folded in
to the rest of the analysis.
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And we don't treat it as sue generous,
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but at least right now you
have that first question,
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is it expressive and is it not gambling?
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If it's expressive and it's
not gambling, then you get
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to the question of is it content
based or content neutral?
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If the regulation is content based,
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then we might be in big trouble.
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It might be very hard
to do that regulation.
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And we saw, like the
ninth circuit just had a,
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about the California addictive feeds law
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where it said the regulation
of the like button and,
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and engagement counts, that's it.
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Content based, that doesn't fly.
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So content based is gonna
be very, very hard to fly.
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On the other hand, if the regulation
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of the social media
function is content neutral,
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and of course we can talk
about what that means,
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but if it's content neutral, then
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then it could potentially pass muster.
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But there has to be a
sufficient state interest.
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It has to be narrowly tailored.
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And there's also questions about overbred
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and over inclusiveness and the like.
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So, so that's your kind of standard kind
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of test at that stage.
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Let me say two, let me say, well,
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lemme back up top coverage.
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I said it has to be within the coverage
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of the First Amendment for
us even to think about this.
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So there are regulations
out there, like if
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there's concern about social
media pushing pro anorexia
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content to somebody who it's
algorithm knows is anorexic
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or has struggled with
anorexia, which is a thing
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that happens and is
alleged in the suits and,
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and is out there at least
alleged in the suits, right?
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If a state comes in and says,
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you may not display pro anorexia content,
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then you're within the coverage
of the first amendment,
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you're, you're talking about
the kind of expressive choices
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of, of the app.
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And so we'd have to go through the
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rest of the analysis on that front.
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If on the other hand the state comes in
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and says, oh, there's these
issues of like near misses,
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like if there's kind of
this, if if we're playing
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with the timing of a notification
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or if we're, if we're
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not telling somebody
about consumer protections
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that are available to them
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or we're using like inter
intermittent reinforcement
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and variable of reward in how
we space out content, then,
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then you're not allowed to do that.
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At least not with, without
telling people there's arguments
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that that is content neutral.
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And then if it's content neutral then
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and it's not gambling then,
oh, sorry, I got mixed up.
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There's argument that the regulation
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of something like intermittent
reinforcement is not
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expressive at all because
the, the kind of timing
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of things is not displayed to the user.
252
00:10:22,590 --> 00:10:24,330
They don't know what's happening.
It's not expressed at all.
253
00:10:24,330 --> 00:10:26,970
And so then it just does not
get first amendment protection.
254
00:10:26,970 --> 00:10:29,040
But if it does, then it goes under the
255
00:10:29,040 --> 00:10:30,750
content neutral category.
256
00:10:30,750 --> 00:10:33,420
And then the last thing I will
say of all of this to the two
257
00:10:33,420 --> 00:10:37,890
of you is that when we talk
about the state interests
258
00:10:37,890 --> 00:10:42,630
involved, I have found here that
259
00:10:44,400 --> 00:10:47,850
that you have a menu for a state,
260
00:10:47,850 --> 00:10:51,870
a very broad state interests
to very to more narrow ones.
261
00:10:51,870 --> 00:10:55,230
Sometimes states are asserting
that they can regulate this
262
00:10:55,230 --> 00:10:57,840
because of interest in protecting
psychological wellbeing
263
00:10:57,840 --> 00:11:01,350
of children or interest
in just the public health,
264
00:11:01,350 --> 00:11:02,430
which is the Jacobson case.
265
00:11:03,420 --> 00:11:06,180
These are potentially
very broad interests.
266
00:11:06,180 --> 00:11:07,950
On the other hand, you could also
267
00:11:07,950 --> 00:11:09,090
have a more narrow interest.
268
00:11:09,090 --> 00:11:10,890
So if we say that the
concern here is actually the
269
00:11:10,890 --> 00:11:13,740
addictiveness, then the state
interest could be just in
270
00:11:13,740 --> 00:11:16,050
protecting the freedom
of thought of the user.
271
00:11:16,050 --> 00:11:19,320
It could be in protecting that
can freedom from addiction.
272
00:11:19,320 --> 00:11:21,450
And then what the state can do to support
273
00:11:21,450 --> 00:11:23,190
that interest is more
narrow, narrowly constrained.
274
00:11:24,060 --> 00:11:26,160
So you, you have to have
map out that question too.
275
00:11:26,160 --> 00:11:28,830
So that's a broad lay of the land.
276
00:11:28,830 --> 00:11:30,750
If you had my piece of
paper in front of you,
277
00:11:30,750 --> 00:11:31,890
it'd be easier to track.
278
00:11:31,890 --> 00:11:33,810
And I'm thinking of listeners
279
00:11:33,810 --> 00:11:36,570
who don't know First Amendment
law kind of very generally,
280
00:11:36,570 --> 00:11:39,930
but, but the bottom line is just coverage,
281
00:11:41,340 --> 00:11:44,190
not gambling and then this
content base versus content
282
00:11:44,190 --> 00:11:45,480
neutral distinction before turning
283
00:11:45,480 --> 00:11:46,590
to the nature of the state interest.
284
00:11:47,460 --> 00:11:51,420
- Other than that, thanks so
much. Very helpful layout.
285
00:11:51,420 --> 00:11:53,800
So you explain why it is you think
286
00:11:53,800 --> 00:11:56,770
that there is some justification
for regulation here,
287
00:11:56,770 --> 00:12:00,970
and then talk about where First
Amendment prohibits certain
288
00:12:00,970 --> 00:12:03,100
kinds of even justifiable,
289
00:12:03,100 --> 00:12:05,020
or excuse me, certain kinds of regulations
290
00:12:05,020 --> 00:12:07,750
for which there is a
plausible justification,
291
00:12:07,750 --> 00:12:11,950
but it only applies to
things that are that,
292
00:12:11,950 --> 00:12:13,510
that are expressive in some sense.
293
00:12:13,510 --> 00:12:16,630
We can talk about that and it
also provides more latitude
294
00:12:16,630 --> 00:12:18,670
for the government to restrict speech
295
00:12:18,670 --> 00:12:21,250
and content neutral ways
rather than content based ways.
296
00:12:21,250 --> 00:12:24,370
So on, on those big pictures,
I think, I think we all agree.
297
00:12:24,370 --> 00:12:26,080
I I'd say also, I don't know about Jane.
298
00:12:26,080 --> 00:12:28,540
I'd say also I agree with you
with regard to the gambling.
299
00:12:28,540 --> 00:12:32,110
It's true that gambling
transactions, like any kinds
300
00:12:32,110 --> 00:12:33,460
of commercial transactions
301
00:12:33,460 --> 00:12:37,030
or transactions involving
exchange of value tend
302
00:12:37,030 --> 00:12:38,530
to involve communication.
303
00:12:39,370 --> 00:12:43,390
But just because a bingo game
involves people saying a lot
304
00:12:43,390 --> 00:12:46,870
of things, or for that
matter, a poker game involves
305
00:12:46,870 --> 00:12:49,930
people saying things
and displaying visuals.
306
00:12:49,930 --> 00:12:54,250
The cards doesn't mean that the,
307
00:12:54,250 --> 00:12:57,220
that the first amendment
precludes gambling regulation.
308
00:12:57,220 --> 00:12:59,235
So, so on that, I, I would agree.
309
00:12:59,235 --> 00:13:00,520
- And then I was gonna, I
was gonna say the same thing.
310
00:13:00,520 --> 00:13:02,560
I actually think it's such an easy case
311
00:13:02,560 --> 00:13:04,480
because it's really a transaction.
312
00:13:04,480 --> 00:13:06,100
There's a transactional hook
313
00:13:06,100 --> 00:13:09,910
and so much like how the
regulation of drugs like you,
314
00:13:09,910 --> 00:13:12,940
you could say like, you know,
a peddler of LSD is trying
315
00:13:12,940 --> 00:13:16,210
to give someone that's very
communicative in some sense
316
00:13:16,210 --> 00:13:17,820
experience, but right.
317
00:13:17,820 --> 00:13:22,020
But the fact that it is a
substance just trends, you know,
318
00:13:22,020 --> 00:13:26,290
you know, crosses that speech
conduct line well enough
319
00:13:26,290 --> 00:13:27,430
that I think it's very obvious.
320
00:13:27,430 --> 00:13:28,990
Whereas if there were a law though
321
00:13:28,990 --> 00:13:31,750
that targeted gambling based on no money,
322
00:13:31,750 --> 00:13:36,340
so it was just the fun of
playing with fake, fake
323
00:13:36,340 --> 00:13:38,710
currency that, you know, has no,
324
00:13:39,790 --> 00:13:41,410
has no actual financial
325
00:13:41,410 --> 00:13:42,910
or other real world
326
00:13:45,220 --> 00:13:48,340
interest on the users,
I would then I think
327
00:13:48,340 --> 00:13:50,470
that there would be no transaction
328
00:13:50,470 --> 00:13:52,630
that would be non-communicative.
329
00:13:52,630 --> 00:13:55,780
So that was my impression too. Yeah.
330
00:13:55,780 --> 00:13:58,300
- Yeah, I think that there's,
you know, if we accept
331
00:13:58,300 --> 00:14:00,910
that gambling is simply not
covered by the first Amendment,
332
00:14:00,910 --> 00:14:03,670
then questions come out
about how we define gambling.
333
00:14:04,660 --> 00:14:07,990
You've each articulated
kind of features of
334
00:14:07,990 --> 00:14:09,910
what you see as gambling.
335
00:14:09,910 --> 00:14:12,250
We could then ask how
those features connect
336
00:14:12,250 --> 00:14:14,380
to our constitutional methodology
337
00:14:14,380 --> 00:14:17,230
for defining a concept like gambling.
338
00:14:17,230 --> 00:14:20,560
I would suggest that we should
also think about the kind
339
00:14:20,560 --> 00:14:23,920
of underlying concerns
that behavioral addiction
340
00:14:23,920 --> 00:14:25,540
to gambling presents
341
00:14:25,540 --> 00:14:27,940
and that we, in thinking about
the definition of gambling,
342
00:14:27,940 --> 00:14:32,140
would want to also include
practices that are part
343
00:14:32,140 --> 00:14:33,940
of gambling and a part of other things
344
00:14:33,940 --> 00:14:35,890
that raise those same concerns.
345
00:14:35,890 --> 00:14:36,940
Others would disagree with that,
346
00:14:36,940 --> 00:14:38,260
but I think we just get to interesting
347
00:14:38,260 --> 00:14:39,580
questions there about boundary drawn.
348
00:14:40,555 --> 00:14:43,030
- So, so, so far we've talked about things
349
00:14:43,030 --> 00:14:44,350
that we we're largely agree on.
350
00:14:44,350 --> 00:14:46,450
Here are some things that I
think we might disagree on.
351
00:14:46,450 --> 00:14:47,830
So Matt, I wanted to ask you this.
352
00:14:49,450 --> 00:14:52,460
My stance as a general
matter is that when it comes
353
00:14:52,460 --> 00:14:54,620
to first amendment related activity,
354
00:14:54,620 --> 00:14:56,600
and of course it's an
interesting question, how far
355
00:14:56,600 --> 00:15:00,530
that should go, we basically think
356
00:15:00,530 --> 00:15:05,360
that people should be
free to decide in it, free
357
00:15:05,360 --> 00:15:07,010
of the government intruding.
358
00:15:08,120 --> 00:15:11,120
And, and that includes situations
359
00:15:11,120 --> 00:15:14,270
where we think people are
making bad choices about what,
360
00:15:15,290 --> 00:15:16,490
what to hear
361
00:15:16,490 --> 00:15:19,925
and what to do based on
what they hear generally.
362
00:15:19,925 --> 00:15:23,150
It, it also extends to situations
363
00:15:23,150 --> 00:15:26,450
where we think they're being
psychologically manipulated in
364
00:15:26,450 --> 00:15:27,470
certain ways.
365
00:15:28,970 --> 00:15:31,160
To be sure in certain
situations may not be, like
366
00:15:31,160 --> 00:15:32,510
for example, with fraud,
367
00:15:32,510 --> 00:15:35,690
if it's outright fraudulent
obtaining of money, sort
368
00:15:35,690 --> 00:15:36,800
of related to gambling
369
00:15:36,800 --> 00:15:39,620
or gambling that it involves
exchange of things of value.
370
00:15:39,620 --> 00:15:43,670
There are, there are permissible
restrictions on that.
371
00:15:43,670 --> 00:15:45,440
But as a general matter,
when people say, you know,
372
00:15:45,440 --> 00:15:49,910
I've been manipulated by this
speech, we generally think,
373
00:15:49,910 --> 00:15:51,620
you know, that's kind of on you.
374
00:15:51,620 --> 00:15:53,600
That's not for the government
to protect you against.
375
00:15:53,600 --> 00:15:55,610
And here's an analogy I want to draw
376
00:15:55,610 --> 00:15:58,700
and I want to acknowledge
that like all analogies,
377
00:15:58,700 --> 00:16:00,440
it's not an identity,
378
00:16:00,440 --> 00:16:02,330
but it, it involves the first amendment,
379
00:16:02,330 --> 00:16:04,460
but at different clause of the person.
380
00:16:04,460 --> 00:16:05,660
That's the three exercise.
381
00:16:05,660 --> 00:16:10,280
Cause that there are a lot of people
382
00:16:10,280 --> 00:16:14,690
who invest a great deal of time
383
00:16:14,690 --> 00:16:17,240
and effort and psych and psychological
384
00:16:19,010 --> 00:16:20,540
and have a great deal
385
00:16:20,540 --> 00:16:24,590
of psychological investment
in their religions.
386
00:16:24,590 --> 00:16:26,150
In fact, they often spend a lot
387
00:16:26,150 --> 00:16:31,130
of money on their religions
in the form of tithing,
388
00:16:31,130 --> 00:16:35,390
maybe providing 10% of, of
their income to the church,
389
00:16:35,390 --> 00:16:38,180
or sometimes even donating
much larger sums of money.
390
00:16:38,180 --> 00:16:42,440
In fact, some people turn over
all of their property either
391
00:16:42,440 --> 00:16:44,270
to the church or surrender
it to someone else,
392
00:16:44,270 --> 00:16:45,590
take a vow of poverty.
393
00:16:46,550 --> 00:16:49,370
They sometimes deliberately
cut off connections
394
00:16:49,370 --> 00:16:53,090
with their families because of
their religion, whether it's
395
00:16:53,090 --> 00:16:56,150
because they think that
their family are sinful
396
00:16:56,150 --> 00:16:57,800
and not following the right religion,
397
00:16:57,800 --> 00:16:59,810
or they may love their family,
398
00:16:59,810 --> 00:17:02,870
but they may conclude that
they need to join a monastery
399
00:17:02,870 --> 00:17:04,520
or even become a hermit
400
00:17:04,520 --> 00:17:07,460
and separate themselves from
their family in this way.
401
00:17:09,770 --> 00:17:14,570
So, so also, I take it
that a lot of people,
402
00:17:14,570 --> 00:17:16,730
and I don't necessarily wanna
endorse this view generally
403
00:17:16,730 --> 00:17:18,650
about religion, but I think
it's probably true at least
404
00:17:18,650 --> 00:17:20,060
to some religious beliefs.
405
00:17:20,060 --> 00:17:22,670
A lot of people think that some religions
406
00:17:22,670 --> 00:17:24,380
act in manipulative ways,
407
00:17:24,380 --> 00:17:28,310
that they prey on people's
emotional vulnerability.
408
00:17:28,310 --> 00:17:31,070
They may indeed, without sort
of thinking of it in terms
409
00:17:31,070 --> 00:17:34,850
of dopamine hits, may
indeed engage in this kind
410
00:17:34,850 --> 00:17:38,180
of variable, variable,
411
00:17:39,500 --> 00:17:41,810
I guess a reward reinforcement.
412
00:17:41,810 --> 00:17:43,460
They, they kind of
413
00:17:44,390 --> 00:17:47,120
are deliberately great habit forming
414
00:17:47,120 --> 00:17:49,500
or deliberately engaged
in habit forming behavior,
415
00:17:49,500 --> 00:17:52,800
deliberately create habits,
habits of prayer, habits
416
00:17:52,800 --> 00:17:54,390
of visiting the church, habits
417
00:17:54,390 --> 00:17:55,830
of giving money to the church.
418
00:17:56,730 --> 00:18:01,110
And one could imagine,
I think the same kinds
419
00:18:01,110 --> 00:18:04,080
of arguments about manipulation, about
420
00:18:04,080 --> 00:18:05,250
praying on the vulnerable,
421
00:18:05,250 --> 00:18:09,000
including sometimes pre on minors, that
422
00:18:09,990 --> 00:18:13,830
that one would apply to religious to,
423
00:18:15,185 --> 00:18:18,540
to the actions of religions including to,
424
00:18:18,540 --> 00:18:21,270
to the religious preaching
in favor of particular things
425
00:18:21,270 --> 00:18:23,640
or the way the religion
builds its community.
426
00:18:24,960 --> 00:18:28,890
Yet I take it that if somebody
were to say, you know, all
427
00:18:28,890 --> 00:18:32,130
of the stuff about how,
how you are being taught
428
00:18:32,130 --> 00:18:35,850
to pray every day, that's kind
of a religious manipulation.
429
00:18:35,850 --> 00:18:37,710
That's something that kind of pushes you
430
00:18:37,710 --> 00:18:39,360
to do these things repetitively.
431
00:18:39,360 --> 00:18:40,920
They get you into habits.
432
00:18:40,920 --> 00:18:43,230
We know that once people join a religion,
433
00:18:43,230 --> 00:18:45,780
they sometimes find it
very difficult to leave.
434
00:18:45,780 --> 00:18:48,510
They sometimes do things
that are bad for themselves
435
00:18:48,510 --> 00:18:49,890
and for their family lives
436
00:18:49,890 --> 00:18:52,950
and for, for their
their financial outlook.
437
00:18:52,950 --> 00:18:54,750
We think it's all very suspicious.
438
00:18:54,750 --> 00:18:57,930
So we are going to either
restrict some of these behaviors
439
00:18:57,930 --> 00:18:59,190
or require warnings.
440
00:18:59,190 --> 00:19:01,650
Like before you're
asked to tithe, you have
441
00:19:01,650 --> 00:19:02,910
to provide a warning.
442
00:19:02,910 --> 00:19:04,890
Warning. This behavior
may be habit forming,
443
00:19:04,890 --> 00:19:07,590
warning via the surgeon
general has concluded
444
00:19:07,590 --> 00:19:10,050
that some such behavior
may be manipulative.
445
00:19:10,050 --> 00:19:13,230
I take it, if we were to try to do that,
446
00:19:13,230 --> 00:19:16,740
the response would be probably
the free exercise clause
447
00:19:16,740 --> 00:19:18,570
precludes that, that the,
448
00:19:18,570 --> 00:19:23,160
that free exercise clause
includes the right to try to
449
00:19:23,160 --> 00:19:27,180
get people to adopt a certain
religious belief system
450
00:19:27,180 --> 00:19:29,880
and engage in certain religious
practices sitting aside one,
451
00:19:29,880 --> 00:19:31,920
like it's religiously motivated murder.
452
00:19:31,920 --> 00:19:33,390
That might be a different matter,
453
00:19:33,390 --> 00:19:36,960
but engage in certain religious
practices without secular
454
00:19:36,960 --> 00:19:39,325
authorities, whether prosecutors or courts
455
00:19:39,325 --> 00:19:42,450
or juries either in civil or
criminal cases or executive
456
00:19:42,450 --> 00:19:44,190
or administrative officials.
457
00:19:44,190 --> 00:19:46,980
Second guessing the church's behavior
458
00:19:46,980 --> 00:19:48,960
and saying, well, this
is too manipulative,
459
00:19:48,960 --> 00:19:52,290
this relies too much on, on
460
00:19:52,290 --> 00:19:55,170
what we know now about
the, the neuroscience
461
00:19:55,170 --> 00:19:56,250
of dopamine relief.
462
00:19:57,210 --> 00:20:00,180
This has been carefully
honed to be sure not
463
00:20:00,180 --> 00:20:03,210
through a couple of years of AB testing,
464
00:20:03,210 --> 00:20:06,930
but through thousands of
years of the, of the evolution
465
00:20:06,930 --> 00:20:09,450
of this church, of this
religious belief system.
466
00:20:09,450 --> 00:20:13,320
It's been carefully honed to,
to take advantage of people's
467
00:20:13,320 --> 00:20:17,910
liabilities, advantage of
people's vulnerabilities
468
00:20:17,910 --> 00:20:21,120
and, and irrational approaches to things
469
00:20:22,740 --> 00:20:24,360
they will, that would
be pretty clearly a free
470
00:20:24,360 --> 00:20:25,770
exercise clause violation.
471
00:20:25,770 --> 00:20:27,360
So if I'm right on that, maybe I'm wrong,
472
00:20:27,360 --> 00:20:30,210
but if I'm right on that,
why wouldn't similar attempts
473
00:20:30,210 --> 00:20:33,900
to try to restrict communication be also
474
00:20:33,900 --> 00:20:34,905
a free speech clause viol?
475
00:20:36,225 --> 00:20:38,550
- Well, and can I, can
I, can I do a version of
476
00:20:38,550 --> 00:20:40,680
that question that brings,
that's very similar
477
00:20:40,680 --> 00:20:42,660
but brings it into the free speech clause?
478
00:20:42,660 --> 00:20:44,940
Or do you wanna first respond
to Oh, so, so I'm one,
479
00:20:44,940 --> 00:20:46,050
you could say the same thing.
480
00:20:46,050 --> 00:20:48,580
I was thinking the same
thing about the news
481
00:20:48,580 --> 00:20:50,020
or political speech, right?
482
00:20:50,020 --> 00:20:53,260
So if the news has long known
that if it bleeds, it leads
483
00:20:53,260 --> 00:20:54,640
that there's fear mongering
484
00:20:54,640 --> 00:20:58,570
that re causes certain
psychological responses
485
00:20:58,570 --> 00:21:02,080
that keep people coming back more often.
486
00:21:02,080 --> 00:21:06,940
Demagogues certainly have,
do their own experimentation,
487
00:21:06,940 --> 00:21:09,970
you know, pretty cl something
pretty close to ab testing
488
00:21:09,970 --> 00:21:12,880
with the, with the help of
staff to figure out what types
489
00:21:12,880 --> 00:21:17,380
of messages keep people at
almost religious, like, you know,
490
00:21:19,000 --> 00:21:21,430
fey to their campaigns.
491
00:21:21,430 --> 00:21:23,530
And so that, that would
be very similar, I think
492
00:21:23,530 --> 00:21:24,580
to what Eugene's asking.
493
00:21:24,580 --> 00:21:26,410
But, but in the free speech clause,
494
00:21:26,410 --> 00:21:27,550
all right, your floor is yours.
495
00:21:28,390 --> 00:21:30,430
- Let me give a really short answer
496
00:21:30,430 --> 00:21:33,040
and then try to do a, a, a longer answer.
497
00:21:33,040 --> 00:21:35,440
I love these questions, so
thank you each, I've just,
498
00:21:35,440 --> 00:21:36,730
and I wish we had more than an hour.
499
00:21:37,750 --> 00:21:42,370
So my very short answer
is that if the state were
500
00:21:42,370 --> 00:21:45,820
to say that to single
out a, a practice used
501
00:21:45,820 --> 00:21:47,830
by a religious institution
502
00:21:47,830 --> 00:21:51,940
and say, you know, this
particular practice we think is
503
00:21:51,940 --> 00:21:53,860
concerning as a public health matter
504
00:21:53,860 --> 00:21:55,210
because it contributes to addiction.
505
00:21:57,700 --> 00:22:01,390
And so we're actually banning
that practice society-wide,
506
00:22:01,390 --> 00:22:04,990
D wide, including when
used by religions, right?
507
00:22:04,990 --> 00:22:06,760
If a state were to do that, then
508
00:22:06,760 --> 00:22:08,440
that would be Oregon v Smith,
509
00:22:08,440 --> 00:22:11,590
which is when the state banned peyote use.
510
00:22:11,590 --> 00:22:14,830
And the Supreme Court said
that the state could apply
511
00:22:14,830 --> 00:22:17,920
that ban to a religious institution
512
00:22:17,920 --> 00:22:20,560
and it did not violate free exercise.
513
00:22:20,560 --> 00:22:23,500
So if the state is across the
board identifying a particular
514
00:22:23,500 --> 00:22:27,430
practice or particular
mechanism as such a threat
515
00:22:27,430 --> 00:22:31,150
to people's freedom of thought
that it leads to addiction
516
00:22:31,150 --> 00:22:33,700
and it's putting that
ban across the board,
517
00:22:33,700 --> 00:22:36,160
then it can apply as well to churches
518
00:22:36,160 --> 00:22:38,380
and as well to individual
religious institutions.
519
00:22:38,380 --> 00:22:40,270
And we know that that's not a violation
520
00:22:40,270 --> 00:22:41,890
of free exercise clause under organ.
521
00:22:41,890 --> 00:22:44,200
Now RFR would be different rfr, we'd have
522
00:22:44,200 --> 00:22:46,330
to do a whole analysis,
but it would be different.
523
00:22:46,330 --> 00:22:50,110
And then to go to kind of,
you know, the, to unpack
524
00:22:50,110 --> 00:22:52,990
that answer a little bit, you know
525
00:22:53,890 --> 00:22:56,500
what I love about this question is
526
00:22:56,500 --> 00:22:59,050
that usually when I talk
about addictive design
527
00:22:59,050 --> 00:23:03,070
by social media companies
or in slot machines
528
00:23:03,070 --> 00:23:05,920
or anywhere, usually when I
talk about it, people kind
529
00:23:05,920 --> 00:23:07,600
of say, what are you talking about?
530
00:23:07,600 --> 00:23:12,340
There's, sorry, my, we're
gonna have to edit for a sec.
531
00:23:12,340 --> 00:23:13,840
My phone rang. Or you can not edit
532
00:23:13,840 --> 00:23:16,240
and readers can hear that
that happened or listeners.
533
00:23:16,240 --> 00:23:18,160
Anyway, when, when I talk about this,
534
00:23:18,160 --> 00:23:19,390
people say, what are you talking about?
535
00:23:19,390 --> 00:23:22,630
There's free will. And if we
follow your logic, then all
536
00:23:22,630 --> 00:23:25,270
of these things that happen
in society might actually be
537
00:23:25,270 --> 00:23:27,610
influencing our brains and
changing the way we think.
538
00:23:27,610 --> 00:23:29,470
And maybe there's not free
will. It's all determination.
539
00:23:29,470 --> 00:23:31,330
Like what do we do with
that? Where do we go there?
540
00:23:31,330 --> 00:23:34,570
And your question does the opposite.
541
00:23:34,570 --> 00:23:37,570
You say, Hey, here's this
beloved institution of religion
542
00:23:37,570 --> 00:23:40,570
that is actively manipulating us.
543
00:23:40,570 --> 00:23:43,420
I'm grateful for the way
I was manipulated as a kid
544
00:23:43,420 --> 00:23:46,490
by religion and the values
it inculcated, right?
545
00:23:46,490 --> 00:23:48,350
And so this is coming from
a completely different angle
546
00:23:48,350 --> 00:23:52,250
that's like the, like the Bethel
tinker kind of thing about,
547
00:23:52,250 --> 00:23:54,380
well, we know that we're inculcating
548
00:23:54,380 --> 00:23:57,140
and sometimes we want the state
to inculcate civic virtues.
549
00:23:57,140 --> 00:23:59,510
And then of course religion
is there, inculcating,
550
00:23:59,510 --> 00:24:02,030
it's shaping people's minds and the like.
551
00:24:02,030 --> 00:24:03,980
And so I just, you
know, I appreciate that.
552
00:24:04,880 --> 00:24:08,630
What I would say is even
in a world where we know
553
00:24:08,630 --> 00:24:10,850
that the conversation we're
having right now is gonna shape
554
00:24:10,850 --> 00:24:12,230
the way we all think in the future
555
00:24:12,230 --> 00:24:13,880
and that we don't really
have freedom of thought,
556
00:24:13,880 --> 00:24:15,620
our thought is constantly being influenced
557
00:24:15,620 --> 00:24:17,300
by the people we're exposed to.
558
00:24:17,300 --> 00:24:22,300
Even that in that world,
addiction is a different thing.
559
00:24:22,580 --> 00:24:24,830
It's a different thing
because historically
560
00:24:24,830 --> 00:24:26,060
and traditionally we've thought
561
00:24:26,060 --> 00:24:27,740
about it as a different thing.
562
00:24:27,740 --> 00:24:31,910
It's a different thing because
when the neuroscientists
563
00:24:31,910 --> 00:24:33,950
study it, they can show
pictures of it in your brain
564
00:24:33,950 --> 00:24:36,530
and show how it changes brain
structures in different ways.
565
00:24:37,370 --> 00:24:41,060
It's a different thing because
even if it's a more extreme
566
00:24:41,060 --> 00:24:43,040
version of habit, it's different
567
00:24:43,040 --> 00:24:44,150
and kind to the point
568
00:24:44,150 --> 00:24:46,580
that we treat it differently medically,
569
00:24:46,580 --> 00:24:48,470
we think about it differently in society.
570
00:24:50,120 --> 00:24:52,070
And that last answer to why
addiction's a different thing
571
00:24:52,070 --> 00:24:53,270
I'm getting at, it might be
572
00:24:53,270 --> 00:24:55,970
that addiction is a different
thing in degree rather than in
573
00:24:55,970 --> 00:24:58,400
kind from other things that
we're exposed to in life.
574
00:24:58,400 --> 00:25:01,700
I think that's actually a
current debate in some of the,
575
00:25:01,700 --> 00:25:03,290
at least in the anthropology community,
576
00:25:03,290 --> 00:25:04,760
if not the medical community.
577
00:25:04,760 --> 00:25:08,450
But addiction is a
phenomenon that is distinct.
578
00:25:08,450 --> 00:25:11,540
Maybe so is religious
belief, I'm not sure, but I,
579
00:25:11,540 --> 00:25:13,250
but I, I do think addiction is a different
580
00:25:13,250 --> 00:25:14,720
phenomenon that is distinct.
581
00:25:14,720 --> 00:25:16,340
And so then I would say, you know,
582
00:25:16,340 --> 00:25:20,120
to distinguish your religious
examples from addiction is,
583
00:25:20,120 --> 00:25:24,140
well your religious examples
are about inculcating religion,
584
00:25:24,140 --> 00:25:26,360
for example, in most of those,
585
00:25:26,360 --> 00:25:29,060
or if not all of them,
either the parent wants
586
00:25:29,060 --> 00:25:31,130
that inculcation or the person
587
00:25:31,130 --> 00:25:33,560
who engages in the practice
wants to engage in the practice.
588
00:25:35,150 --> 00:25:37,520
Addiction on the other hand,
is something that a person sees
589
00:25:37,520 --> 00:25:40,940
as harmful or maybe that
medicine sees as harmful
590
00:25:42,440 --> 00:25:45,950
and addiction's got intrusive urges
591
00:25:45,950 --> 00:25:49,070
to engage in a particular
behavior that's unwanted.
592
00:25:49,970 --> 00:25:53,480
So if the state labels
a particular practice
593
00:25:53,480 --> 00:25:56,780
as causing addiction, that's
a thing that's an outcome.
594
00:25:56,780 --> 00:25:58,160
That could be a religious practice.
595
00:25:58,160 --> 00:26:00,560
To go back to where I
started, in that case,
596
00:26:00,560 --> 00:26:02,060
if the state targeted religions
597
00:26:02,060 --> 00:26:04,940
and said, only religions
cannot engage in this, then
598
00:26:04,940 --> 00:26:09,110
that would be a blatant violation
of free exercise clause.
599
00:26:09,110 --> 00:26:11,750
But if on the other hand the
state says no one can do this,
600
00:26:11,750 --> 00:26:13,370
or it's always regulated in this way
601
00:26:13,370 --> 00:26:15,440
because we think it leads
to reli, to addiction,
602
00:26:15,440 --> 00:26:17,540
that again would be Oregon v Smith.
603
00:26:17,540 --> 00:26:19,100
That's a case that we
already know the outcome to.
604
00:26:19,100 --> 00:26:20,660
And then lemme just say a third thing
605
00:26:20,660 --> 00:26:22,100
that I'm very concerned about,
606
00:26:22,100 --> 00:26:25,160
which is the state using
these tools, right?
607
00:26:25,160 --> 00:26:27,710
So the flip side of free
exercise is establishment clause.
608
00:26:27,710 --> 00:26:32,000
We have a long history of concern
about the state using some
609
00:26:32,000 --> 00:26:34,520
of these tools to
inculcate certain things.
610
00:26:34,520 --> 00:26:36,020
I'm concerned today
611
00:26:36,020 --> 00:26:39,050
that the state will gain control
over social media companies
612
00:26:39,050 --> 00:26:42,260
and use these tools to
determine what people think and,
613
00:26:42,260 --> 00:26:44,280
and influence them state action near
614
00:26:44,280 --> 00:26:45,660
or may not protect that.
615
00:26:45,660 --> 00:26:49,170
But if you say that addictive
design on social media is no
616
00:26:49,170 --> 00:26:51,540
different than like,
you know, reading a book
617
00:26:51,540 --> 00:26:53,220
or something like that, then the kind
618
00:26:53,220 --> 00:26:56,280
of government propaganda,
government speech cases would say
619
00:26:56,280 --> 00:26:59,400
that a government can also
manipulate somebody to be,
620
00:26:59,400 --> 00:27:01,980
you know, hooked on the
government version of Facebook
621
00:27:01,980 --> 00:27:04,440
and pay taxes through
the government version
622
00:27:04,440 --> 00:27:06,180
of slot machines and, and all of that.
623
00:27:06,180 --> 00:27:09,000
So I am concerned about the
kind of flip side of, of some
624
00:27:09,000 --> 00:27:12,090
of these, some of these
equivalences if we draw them.
625
00:27:12,090 --> 00:27:16,320
So, but anyway, that's
my best answer to to,
626
00:27:16,320 --> 00:27:18,840
to a question to had a
lot of subtleties to it.
627
00:27:20,220 --> 00:27:23,220
- Well, so, so let, before
we go to the equivalent
628
00:27:23,220 --> 00:27:25,290
of the establishment
clause, let's, let's go back
629
00:27:25,290 --> 00:27:28,770
to the line drawing, I guess between
630
00:27:28,770 --> 00:27:32,490
addiction versus other
things that influence people.
631
00:27:32,490 --> 00:27:34,350
And I get, I get what you're saying is
632
00:27:34,350 --> 00:27:35,820
that if there's some sort
633
00:27:35,820 --> 00:27:39,960
of medically trustworthy gauge
634
00:27:39,960 --> 00:27:41,160
for addiction,
635
00:27:41,160 --> 00:27:44,490
and we can, we can safely
draw some kind of line and,
636
00:27:44,490 --> 00:27:49,080
and say anytime someone is
in is is anytime a company
637
00:27:49,080 --> 00:27:52,710
or an A person is engaged
in addicting others
638
00:27:52,710 --> 00:27:54,510
that can be regulated.
639
00:27:54,510 --> 00:27:56,940
I guess I still don't
understand how the social media
640
00:27:58,710 --> 00:28:00,390
lawsuits could work on those terms
641
00:28:00,390 --> 00:28:04,020
because I, you know, I i I
really feel quite confident
642
00:28:04,020 --> 00:28:07,380
that the news can, the news
would fit this model of,
643
00:28:07,380 --> 00:28:09,300
you know, if, if social
media fits this model,
644
00:28:09,300 --> 00:28:10,950
I think the news does too.
645
00:28:10,950 --> 00:28:15,150
So how can a, how can a state
ag go after only social media
646
00:28:15,150 --> 00:28:19,590
and not every, every speaker
647
00:28:19,590 --> 00:28:21,720
that engages in these practices.
648
00:28:21,720 --> 00:28:23,760
- So the question is, hey, is couldn't,
649
00:28:23,760 --> 00:28:25,230
don't people get addicted to following the
650
00:28:25,230 --> 00:28:27,030
news in that sense?
651
00:28:27,030 --> 00:28:30,150
And, and might that be something medicine
652
00:28:30,150 --> 00:28:31,920
or whoever we are are judging this
653
00:28:31,920 --> 00:28:33,840
by says, yeah, that happens.
654
00:28:33,840 --> 00:28:34,950
And then, and then what does that mean
655
00:28:34,950 --> 00:28:36,720
for regulation, right?
656
00:28:36,720 --> 00:28:40,290
First I would say it's hard
for me to imagine a regulation
657
00:28:40,290 --> 00:28:43,590
that targeted news
outlets that wouldn't be
658
00:28:44,760 --> 00:28:49,440
targeting expression and that
wouldn't be content based.
659
00:28:49,440 --> 00:28:52,350
- Well, no, no. I mean, what
if, what if it's that we know
660
00:28:52,350 --> 00:28:55,050
that the news organizations,
661
00:28:55,050 --> 00:28:57,390
they've looked at their audience figures
662
00:28:57,390 --> 00:29:00,780
and they've realized, oh yeah,
this, these, I mean exactly
663
00:29:00,780 --> 00:29:02,700
what the social media companies
have figured out, right?
664
00:29:02,700 --> 00:29:04,290
That rage bait
665
00:29:04,290 --> 00:29:07,890
and fear baiting
666
00:29:07,890 --> 00:29:09,990
those work way better
than the other stories.
667
00:29:09,990 --> 00:29:11,850
They're gonna keep delivering those.
668
00:29:11,850 --> 00:29:14,250
So I, I think, I mean I, I
really, I really, i I think
669
00:29:14,250 --> 00:29:16,560
that the media that the
in, you know, the influence
670
00:29:16,560 --> 00:29:17,730
of the internet on the media
671
00:29:17,730 --> 00:29:21,240
and the sort of 24 hour news
cycle has made both social
672
00:29:21,240 --> 00:29:23,190
media and traditional media have
673
00:29:23,190 --> 00:29:26,040
to run these models in
order to sort of survive.
674
00:29:26,040 --> 00:29:29,250
If I'm right about that may,
maybe we disagree on that, but,
675
00:29:29,250 --> 00:29:31,170
but for a minute, let's, let's assume
676
00:29:31,170 --> 00:29:33,000
that there's something
similar going on. Yeah,
677
00:29:33,000 --> 00:29:34,000
- I do agree.
678
00:29:34,000 --> 00:29:35,640
And actually that, that just
connects to a side point,
679
00:29:35,640 --> 00:29:39,450
which is one of the challenges
of addictive design is
680
00:29:39,450 --> 00:29:43,270
that it's not that people
wind up consuming more speech,
681
00:29:43,270 --> 00:29:45,970
it's that they wind up
consuming the addictive speech
682
00:29:45,970 --> 00:29:48,820
to the competition, to the kind of cost
683
00:29:48,820 --> 00:29:50,620
of the normal speech.
684
00:29:50,620 --> 00:29:51,910
The, the relationships,
685
00:29:51,910 --> 00:29:54,460
the human interaction, the novel reading.
686
00:29:54,460 --> 00:29:56,290
And so this isn't just a question of
687
00:29:56,290 --> 00:29:58,150
how much speech people consume,
688
00:29:58,150 --> 00:30:01,210
it's whether in our marketplace of speech,
689
00:30:01,210 --> 00:30:03,880
the winners are the ones who outcompete
690
00:30:03,880 --> 00:30:05,560
by being addictive, right?
691
00:30:05,560 --> 00:30:08,170
Or the winners are the
ones who outcompete with
692
00:30:08,170 --> 00:30:10,330
being stimulating or controversial
693
00:30:10,330 --> 00:30:12,730
or the other things that
might gar people's attention.
694
00:30:12,730 --> 00:30:14,410
And that's a real challenge
we have in the social media
695
00:30:14,410 --> 00:30:16,300
landscape right now is if you had an idea
696
00:30:16,300 --> 00:30:20,050
for a great marketplace of
ideas, kind of social media app,
697
00:30:20,050 --> 00:30:21,940
but you declined to do things
698
00:30:21,940 --> 00:30:24,370
that were gonna develop
compulsions in users,
699
00:30:24,370 --> 00:30:26,500
then you wouldn't be able to
get the number of readers,
700
00:30:26,500 --> 00:30:28,870
the number of users to get
to that network effect.
701
00:30:28,870 --> 00:30:30,580
And this has antitrust
implications and everything,
702
00:30:30,580 --> 00:30:31,600
but, so it's not just a question of
703
00:30:31,600 --> 00:30:33,730
how much speed speech
people consume, it's like
704
00:30:33,730 --> 00:30:35,230
what kind they consume.
705
00:30:35,230 --> 00:30:38,350
And I take your point that
like maybe someone singing the
706
00:30:38,350 --> 00:30:41,860
song I'm singing would
say, so we should come in
707
00:30:41,860 --> 00:30:45,100
and stop news outlets
from leaning into rage
708
00:30:45,100 --> 00:30:46,210
or leaning into fear
709
00:30:46,210 --> 00:30:48,010
or some of these things that I, you know,
710
00:30:48,010 --> 00:30:49,210
we could cite Cicero
711
00:30:49,210 --> 00:30:50,980
or somebody on these things, grabbing the,
712
00:30:50,980 --> 00:30:52,150
you know, grabbing people.
713
00:30:53,230 --> 00:30:56,860
My my answer to that is
that it's hard to imagine
714
00:30:56,860 --> 00:30:59,590
that regulation not at least
coming under First Amendment
715
00:30:59,590 --> 00:31:02,770
coverage as a regulation of expression.
716
00:31:02,770 --> 00:31:04,240
It's pretty hard for me to imagine it
717
00:31:04,240 --> 00:31:05,410
not being content-based.
718
00:31:05,410 --> 00:31:08,200
Like if you said you can't
have outrageous speech,
719
00:31:08,200 --> 00:31:09,520
that's, that's content-based.
720
00:31:09,520 --> 00:31:11,800
And so now we're fatal,
in fact strict scrutiny.
721
00:31:11,800 --> 00:31:13,570
If on the other hand you told me, Hey,
722
00:31:13,570 --> 00:31:15,370
what is I regulated a news company?
723
00:31:15,370 --> 00:31:17,500
And I said, you can't use
724
00:31:18,430 --> 00:31:21,820
personalized data in
your targeting decisions,
725
00:31:21,820 --> 00:31:23,410
which is the sort of regulation we'll see
726
00:31:23,410 --> 00:31:24,670
of social media companies.
727
00:31:24,670 --> 00:31:26,350
In that case I'd say, well,
728
00:31:26,350 --> 00:31:30,460
is using personalized
data is that expression?
729
00:31:30,460 --> 00:31:31,810
And I think there's a
good argument that that's,
730
00:31:31,810 --> 00:31:34,450
it's not expressive to
use personalized data.
731
00:31:34,450 --> 00:31:36,340
And then even if it were expressive, is
732
00:31:36,340 --> 00:31:38,020
that a content-based restriction?
733
00:31:38,020 --> 00:31:39,490
No, it's not. It's not based on
734
00:31:39,490 --> 00:31:40,510
the content they're putting out.
735
00:31:40,510 --> 00:31:42,250
It's on, it's on their inputs.
736
00:31:42,250 --> 00:31:43,810
- W why isn't near misses?
737
00:31:43,810 --> 00:31:45,640
Why, why wouldn't near misses then count
738
00:31:45,640 --> 00:31:48,280
as expressive or the near miss?
739
00:31:48,280 --> 00:31:49,900
Yeah, I thought, I thought,
I thought you were arguing
740
00:31:49,900 --> 00:31:51,250
that the design features
741
00:31:51,250 --> 00:31:53,980
that are like exploiting things
like near misses would not
742
00:31:53,980 --> 00:31:56,770
even be counted as expressive. Is that
743
00:31:56,770 --> 00:31:57,770
- Yeah,
- Right.
744
00:31:57,770 --> 00:31:59,980
- Yeah. So yeah, for
like, for one example, if,
745
00:31:59,980 --> 00:32:01,510
if the user like a near miss works
746
00:32:01,510 --> 00:32:03,610
because the user doesn't know that it's,
747
00:32:03,610 --> 00:32:05,710
that it's happening like, like they,
748
00:32:05,710 --> 00:32:07,540
they think it's real,
is what I'm getting at.
749
00:32:08,560 --> 00:32:11,380
Another allegation that's
out there just, just for,
750
00:32:12,250 --> 00:32:13,870
for the help of this conversation, one
751
00:32:13,870 --> 00:32:15,370
of the allegations in the complaints is
752
00:32:15,370 --> 00:32:17,970
that I forget which social
media company actually I,
753
00:32:17,970 --> 00:32:19,210
I think I know, but I'm not gonna say
754
00:32:19,210 --> 00:32:20,890
'cause I always try to be
cautious about these things.
755
00:32:20,890 --> 00:32:23,740
The one of the social media
companies, they, they come up
756
00:32:23,740 --> 00:32:25,960
with a ranking of how much
you'll like given content
757
00:32:27,130 --> 00:32:30,910
And then they don't give you
first best second, best third,
758
00:32:30,910 --> 00:32:33,580
best fourth, best, fifth
best just in order like
759
00:32:33,580 --> 00:32:38,470
that they give you first best
boring, boring, second best,
760
00:32:38,470 --> 00:32:40,640
boring, boring, boring, third best,
761
00:32:40,640 --> 00:32:41,990
boring, boring, boring, boring, boring.
762
00:32:41,990 --> 00:32:43,850
They'd make it like a slot machine
763
00:32:43,850 --> 00:32:45,860
that you're constantly pulling to refresh
764
00:32:45,860 --> 00:32:48,440
where the jackpot is stimulating content.
765
00:32:48,440 --> 00:32:51,410
And that is playing into the
exact it we might say it's not
766
00:32:51,410 --> 00:32:52,880
value that you're getting,
767
00:32:52,880 --> 00:32:54,800
but it is, it's it's utility, right?
768
00:32:54,800 --> 00:32:56,690
And so it's, it winds up
running to the same kind
769
00:32:56,690 --> 00:32:58,040
of psychological mechanisms.
770
00:32:58,040 --> 00:32:59,540
So some of the regulations would say,
771
00:32:59,540 --> 00:33:01,220
Hey, you can't do that.
772
00:33:01,220 --> 00:33:02,450
Or a person has to be able to, you know,
773
00:33:02,450 --> 00:33:06,410
the law would say a person
has to be able to opt in to a,
774
00:33:06,410 --> 00:33:08,300
a social media site that's gonna do that.
775
00:33:08,300 --> 00:33:09,740
So they have to be told,
776
00:33:09,740 --> 00:33:11,720
we're not giving you your
most interesting content.
777
00:33:11,720 --> 00:33:13,280
We are intentionally spacing content.
778
00:33:13,280 --> 00:33:15,890
In fact, our algorithm predicts
when you're gonna leave the
779
00:33:15,890 --> 00:33:18,890
app and we then give you the
very juiciest content we've
780
00:33:18,890 --> 00:33:20,330
been saving for that exact moment
781
00:33:20,330 --> 00:33:22,340
to keep you going, to keep you going.
782
00:33:22,340 --> 00:33:23,690
We're gonna do that. Do
you wanna opt into that?
783
00:33:23,690 --> 00:33:25,340
'cause it's exciting and it'll get you
784
00:33:25,340 --> 00:33:27,320
hooked and you won't be bored.
785
00:33:27,320 --> 00:33:30,380
And then the person could
opt in that law, you know,
786
00:33:30,380 --> 00:33:32,480
is the one that I would say, Hey, well
787
00:33:32,480 --> 00:33:34,910
that's not a regulation of
content, da da da da da.
788
00:33:34,910 --> 00:33:36,650
But that certainly the social
media companies would say,
789
00:33:36,650 --> 00:33:39,590
wait a second, that's
a regulation of speech.
790
00:33:39,590 --> 00:33:40,970
And you know, there's a state interest
791
00:33:40,970 --> 00:33:44,210
and you shouldn't even be
able to empower consumers
792
00:33:44,210 --> 00:33:47,210
to know whether being exposed to that kind
793
00:33:47,210 --> 00:33:48,830
of a slot machine trick, that
794
00:33:48,830 --> 00:33:50,180
that law should be off the books.
795
00:33:50,180 --> 00:33:51,860
And that's the sort of
thing where that could tell,
796
00:33:51,860 --> 00:33:53,480
I'm trying to describe the way the law is,
797
00:33:53,480 --> 00:33:55,220
but I do have a sense that,
798
00:33:55,220 --> 00:33:57,410
that we need a more subtle
analysis for something like that,
799
00:33:57,410 --> 00:33:59,120
that might allow informed law
800
00:33:59,120 --> 00:34:00,470
where the evidence supports it.
801
00:34:00,470 --> 00:34:04,190
- Matt, I wanna return you
a little bit though to the,
802
00:34:04,190 --> 00:34:05,420
to the religion example.
803
00:34:05,420 --> 00:34:07,340
And I think it's, it's
notably that you are saying
804
00:34:07,340 --> 00:34:10,610
that religious practices could
be regulated as well, so long
805
00:34:10,610 --> 00:34:14,330
as there's this general, general rule.
806
00:34:15,680 --> 00:34:19,220
Well, so imagine there is a
general rule that says you have
807
00:34:19,220 --> 00:34:21,530
to disclose to,
808
00:34:22,400 --> 00:34:26,600
to people whom you are
seeking to join your, your
809
00:34:28,250 --> 00:34:30,830
listener group, whether
it's religious or not.
810
00:34:30,830 --> 00:34:33,500
Like how is it that you select
811
00:34:33,500 --> 00:34:35,630
what you are going to say to them?
812
00:34:35,630 --> 00:34:39,230
And also a rule that says
you cannot select things
813
00:34:39,230 --> 00:34:41,750
that are targeted based on
what you know about them.
814
00:34:42,770 --> 00:34:46,880
So if a religion wants to
approach someone with sort
815
00:34:46,880 --> 00:34:50,300
of generic pitch, could fire
816
00:34:50,300 --> 00:34:52,520
and brimstone could be love
817
00:34:52,520 --> 00:34:55,760
and acceptance could be any
mix of that, that's fine.
818
00:34:55,760 --> 00:34:58,700
But if a, if a minister
819
00:34:58,700 --> 00:35:01,040
or just a member of the
group acting in the direction
820
00:35:01,040 --> 00:35:03,080
of the group takes advantage
821
00:35:03,080 --> 00:35:06,980
of something they know
about you, I see you, you,
822
00:35:06,980 --> 00:35:08,780
your a rich man are,
823
00:35:08,780 --> 00:35:12,170
have you wondered about
whether your riches interfere
824
00:35:12,170 --> 00:35:13,460
with your spiritual progress?
825
00:35:13,460 --> 00:35:17,300
I see you're a poor man, you
wondered if God loves you
826
00:35:17,300 --> 00:35:22,070
any less and that that,
that that's why you're poor.
827
00:35:22,070 --> 00:35:24,410
Or I see you, are you elderly?
828
00:35:24,410 --> 00:35:26,000
I see you're sick, I see your man,
829
00:35:26,000 --> 00:35:27,590
I see you're a woman, that kind of stuff.
830
00:35:27,590 --> 00:35:31,190
No, no, no, no. That's
not legitimate way of,
831
00:35:31,190 --> 00:35:35,180
of pitching your ideas whether
they are entertainment,
832
00:35:35,180 --> 00:35:37,710
whether they're political
ideas or religious ideas.
833
00:35:37,710 --> 00:35:39,510
Sounds like you were saying that
834
00:35:39,510 --> 00:35:41,430
that would be a
constitutional restriction.
835
00:35:41,430 --> 00:35:43,200
Now I think as a duck triangle matter,
836
00:35:43,200 --> 00:35:45,990
I don't think employment division
versus Smith goes that far
837
00:35:45,990 --> 00:35:47,100
among other things, rightly
838
00:35:47,100 --> 00:35:50,280
or wrong, the employment division
versus Smith did expressly
839
00:35:50,280 --> 00:35:52,830
distinguish situations where there's a mix
840
00:35:52,830 --> 00:35:55,350
of religious practice in some other right,
841
00:35:55,350 --> 00:35:57,810
whether parental rights or speech.
842
00:35:57,810 --> 00:36:00,720
So I would think that a
regulation of religious speech,
843
00:36:01,710 --> 00:36:04,620
even if it is framed as religion neutral
844
00:36:05,760 --> 00:36:07,650
and even if the trend is content neutral
845
00:36:07,650 --> 00:36:09,090
because it's just based on
846
00:36:10,080 --> 00:36:13,590
whether you're targeting is
based on a person's attributes,
847
00:36:13,590 --> 00:36:14,820
I think would be subject
848
00:36:14,820 --> 00:36:17,190
to strict scrutiny even following
employment division versus
849
00:36:17,190 --> 00:36:18,660
Smith and certainly po.
850
00:36:19,950 --> 00:36:23,610
It does look right now that
the Supreme Court, at least six
851
00:36:23,610 --> 00:36:25,500
right now of the currently
sitting justices,
852
00:36:25,500 --> 00:36:27,780
at least five justices
have said they'd be willing
853
00:36:27,780 --> 00:36:29,700
to reverse employment
division versus Smith.
854
00:36:29,700 --> 00:36:31,770
By the way, I'm a fan of
employment division versus Smith
855
00:36:31,770 --> 00:36:34,860
generally, but that's not where
I think the court today is.
856
00:36:34,860 --> 00:36:37,260
But even underemployment
division versus Smith,
857
00:36:37,260 --> 00:36:38,520
I would think that that kind
858
00:36:38,520 --> 00:36:40,680
of regulation would be unconstitutional.
859
00:36:40,680 --> 00:36:42,810
But what's more, I just think it
860
00:36:42,810 --> 00:36:47,070
just would be a striking
interference by the government
861
00:36:47,070 --> 00:36:50,700
with the liberty of organizations to try
862
00:36:50,700 --> 00:36:53,670
to convey their message, including in ways
863
00:36:53,670 --> 00:36:56,640
that some might conclude is are
psychologically manipulative
864
00:36:56,640 --> 00:36:58,890
but others might conclude
is actually quite valuable.
865
00:36:58,890 --> 00:37:02,610
Many people would much rather
hear messages that are pegged
866
00:37:02,610 --> 00:37:05,550
to their circumstances
that are just generic
867
00:37:05,550 --> 00:37:07,680
and applicable to everyone else.
868
00:37:07,680 --> 00:37:10,440
So, so can you elaborate a
little more, maybe I'm wrong,
869
00:37:10,440 --> 00:37:12,630
maybe I'm misunderstanding,
maybe you think that this kind
870
00:37:12,630 --> 00:37:14,340
of religious behavior would be protected,
871
00:37:14,340 --> 00:37:17,820
but if your argument leads the
religious behavior like that
872
00:37:17,820 --> 00:37:21,630
to be unprotected, to be
regulatable at least so long as
873
00:37:21,630 --> 00:37:24,390
that's the same way we
treat social media platforms
874
00:37:24,390 --> 00:37:27,690
and even news organizations
as to their kind
875
00:37:27,690 --> 00:37:31,530
of individualized targeting,
then it just seems then
876
00:37:31,530 --> 00:37:33,510
that your proposal is quite inconsistent
877
00:37:33,510 --> 00:37:36,270
with the way we've generally
done things when it comes
878
00:37:36,270 --> 00:37:38,160
to First Amendment protected activities.
879
00:37:38,160 --> 00:37:42,000
- If Pope Leo has the Catholic
church devising a Catholic
880
00:37:42,000 --> 00:37:45,870
social media app and
they go to think about
881
00:37:45,870 --> 00:37:48,570
how they're gonna prioritize content
882
00:37:48,570 --> 00:37:50,250
and how they're gonna make,
you know, recommendations
883
00:37:50,250 --> 00:37:53,910
to keep Catholics engaged,
they have to ask what sorts
884
00:37:53,910 --> 00:37:56,610
of data can we consider as we do this
885
00:37:56,610 --> 00:37:59,520
and take addictive design out of it.
886
00:38:00,390 --> 00:38:02,550
I'm guessing that they say,
well we're not gonna be allowed
887
00:38:02,550 --> 00:38:05,820
to use data that is HIPAA
protected medical data
888
00:38:06,810 --> 00:38:09,120
and we're also, well you're,
889
00:38:09,120 --> 00:38:11,135
you're squinting gig Eugene,
so we'll come back to you. But
890
00:38:11,135 --> 00:38:14,340
- Yeah,
- I'm well take as a first cut
891
00:38:14,340 --> 00:38:16,830
that there's existing
limits on the sort of data
892
00:38:16,830 --> 00:38:19,980
that someone designing an
app like that is allowed to
893
00:38:20,910 --> 00:38:22,620
consider and use. I'm
894
00:38:22,620 --> 00:38:26,130
- Sorry, I'm not sure we
should take it given that that,
895
00:38:27,480 --> 00:38:30,900
for example, hipaa, you know,
it would apply if for example,
896
00:38:30,900 --> 00:38:34,800
there is a, a Catholic
hospital, if it's sort
897
00:38:34,800 --> 00:38:36,880
of the church says, oh Catholic hospitals,
898
00:38:36,880 --> 00:38:39,310
please pass along all the
information on your patients
899
00:38:39,310 --> 00:38:40,630
so we can tailor things maybe
900
00:38:40,630 --> 00:38:42,220
that would be, that would be applicable.
901
00:38:42,220 --> 00:38:43,540
But that stems from the,
902
00:38:43,540 --> 00:38:46,745
but you're seniority of
the doctor relationship.
903
00:38:46,745 --> 00:38:50,980
If, if the, if the law said
you as a priest you may know
904
00:38:50,980 --> 00:38:54,010
that you are a patient
is suffering from cancer,
905
00:38:54,010 --> 00:38:55,660
but you can't approach the patient
906
00:38:55,660 --> 00:38:58,770
and say, you know, I
understand that, that that that
907
00:38:58,770 --> 00:39:01,750
that you are ill and you
must wonder like what,
908
00:39:01,750 --> 00:39:02,980
where's God in all that?
909
00:39:02,980 --> 00:39:05,500
And let me tell you, here's the, here's
910
00:39:05,500 --> 00:39:08,080
how you should reconcile
the reality of your illness
911
00:39:08,080 --> 00:39:09,730
with God's love.
912
00:39:09,730 --> 00:39:12,520
If that were something that
the, that the law tried
913
00:39:12,520 --> 00:39:13,750
to restrict, yeah, I would think
914
00:39:13,750 --> 00:39:15,970
that would be a pretty clear
constitutional violation. No,
915
00:39:15,970 --> 00:39:18,310
- And I I think you're right
that HIPAA does not govern the
916
00:39:18,310 --> 00:39:19,720
content of third parties.
917
00:39:19,720 --> 00:39:21,400
So, so HIPAA is a bad example there.
918
00:39:21,400 --> 00:39:22,900
I'm just trying to think of, and
919
00:39:22,900 --> 00:39:24,400
and maybe you can help me out,
920
00:39:24,400 --> 00:39:25,810
- Generally applicable law is
921
00:39:25,810 --> 00:39:27,400
what you're saying, like the, if
922
00:39:27,400 --> 00:39:28,930
- I, yeah, could the Catholic church go
923
00:39:28,930 --> 00:39:32,590
to a data broker in some foreign country
924
00:39:32,590 --> 00:39:34,180
and say, hey, there's all this stuff
925
00:39:34,180 --> 00:39:36,340
that was breached about Catholics,
we wanna buy it from you
926
00:39:36,340 --> 00:39:38,440
because we wanna do
better tiller algorithms
927
00:39:39,280 --> 00:39:43,300
that presumably there's some
law, maybe I'm wrong, you know,
928
00:39:43,300 --> 00:39:44,740
Rico complicated
929
00:39:44,740 --> 00:39:46,990
or you know, something like
that that might well limit it.
930
00:39:46,990 --> 00:39:50,140
- It's complicated. Bar
Viper makes it complicated.
931
00:39:51,040 --> 00:39:54,130
But, but I'm sorry but
I'm interrupting. Go on.
932
00:39:54,130 --> 00:39:57,490
- Oh, but and then I would
also add on non-discrimination
933
00:39:57,490 --> 00:40:00,010
laws that generally applicable
non-discrimination laws
934
00:40:00,010 --> 00:40:01,690
that say maybe don't
discriminate on the basis
935
00:40:01,690 --> 00:40:02,770
of sex or something like
936
00:40:02,770 --> 00:40:04,690
that. If the Catholic
church, well the Catholic
937
00:40:04,690 --> 00:40:06,640
- Church does discriminate
on the basis of sex,
938
00:40:06,640 --> 00:40:07,780
including in hiring
939
00:40:08,680 --> 00:40:12,910
and it as well as other
religious institutions are exempt
940
00:40:12,910 --> 00:40:16,090
as a First amendment matter
from non-discrimination laws.
941
00:40:16,090 --> 00:40:18,160
Well in higher, even though,
942
00:40:18,160 --> 00:40:20,260
even though generally
saying we'll only hire a men
943
00:40:20,260 --> 00:40:24,880
as priests and that le would
be generally unconstitutional,
944
00:40:24,880 --> 00:40:26,805
they, they do have a,
945
00:40:26,805 --> 00:40:29,140
a reli right under the
first amendment to do that
946
00:40:29,140 --> 00:40:30,140
- Principles.
947
00:40:30,140 --> 00:40:30,545
Yeah, this is where
I'm going. 'cause as I,
948
00:40:30,545 --> 00:40:32,350
as I recall the case, it's, it's,
949
00:40:32,350 --> 00:40:34,630
you have a generally applicable statute
950
00:40:34,630 --> 00:40:35,800
that's not necessarily,
951
00:40:35,800 --> 00:40:37,780
doesn't necessarily exempt
the Catholic church from say
952
00:40:37,780 --> 00:40:39,100
like, you know,
953
00:40:39,100 --> 00:40:41,260
employment discrimination
rules or something like that.
954
00:40:41,260 --> 00:40:43,120
And then the court says, wait a second,
955
00:40:43,120 --> 00:40:46,180
this generally applicable
law may be fine for plumbers
956
00:40:46,180 --> 00:40:47,830
and social media companies, right?
957
00:40:47,830 --> 00:40:50,440
And everyone else, but were
we to apply it to religion,
958
00:40:50,440 --> 00:40:52,510
it would run into special
free exercise and,
959
00:40:52,510 --> 00:40:53,860
and establishment cause issues.
960
00:40:53,860 --> 00:40:56,170
Therefore we're gonna serious
constitutional question,
961
00:40:56,170 --> 00:40:57,670
we're gonna avoid that reading.
962
00:40:57,670 --> 00:40:59,470
And the upshot of that kind of a case is
963
00:40:59,470 --> 00:41:01,720
that we're pretty comfortable in our law
964
00:41:01,720 --> 00:41:04,480
with generally applicable
rules that apply to all sorts
965
00:41:04,480 --> 00:41:07,390
of people and institutions
that if it applied
966
00:41:07,390 --> 00:41:08,680
to a church it might make us
967
00:41:08,680 --> 00:41:10,005
nervous. Is is what I'm getting at.
968
00:41:10,005 --> 00:41:12,130
- Oh, but I'm sorry, I
thought earlier in your praise
969
00:41:12,130 --> 00:41:15,130
of employment division versus
Smith, you were suggesting
970
00:41:15,130 --> 00:41:16,210
that actually these kinds
971
00:41:16,210 --> 00:41:18,430
of anti addiction rules
could constitutionally
972
00:41:18,430 --> 00:41:19,660
apply to churches.
973
00:41:19,660 --> 00:41:22,450
They don't get any pre-exercise
clause break anymore than
974
00:41:22,450 --> 00:41:24,160
social media platforms should get a
975
00:41:24,160 --> 00:41:25,465
free speech clause break.
976
00:41:25,465 --> 00:41:28,525
- Yes. No, you're right. But it's
977
00:41:28,525 --> 00:41:30,730
- Okay if you, if you, you
change your view, I mean either
978
00:41:30,730 --> 00:41:32,770
because no misunderstood, well maybe it's,
979
00:41:32,770 --> 00:41:34,640
it's if you explain to
me I misunderstood you,
980
00:41:34,640 --> 00:41:36,050
but if you change it, that's fine too.
981
00:41:36,050 --> 00:41:38,030
I mean it's great t that to have
982
00:41:38,030 --> 00:41:39,030
- That.
983
00:41:39,030 --> 00:41:41,720
No, Eugene, I'll be honest,
you know, I have on my notes,
984
00:41:41,720 --> 00:41:43,130
which, which aren't great,
985
00:41:43,130 --> 00:41:44,900
but I wrote religion question mark
986
00:41:44,900 --> 00:41:47,810
and then I have just
two really distinct ways
987
00:41:47,810 --> 00:41:50,300
that I think the origin
religion analogy kind
988
00:41:50,300 --> 00:41:51,860
of is only so helpful.
989
00:41:51,860 --> 00:41:55,070
The first is that it runs into
the free exercise organ VB
990
00:41:55,070 --> 00:41:56,780
Smith issues that we've
already thought about.
991
00:41:56,780 --> 00:41:59,960
The second is that this
kind of analogy to religion,
992
00:41:59,960 --> 00:42:03,170
social media companies to
religion sort of assumes
993
00:42:03,170 --> 00:42:06,356
that if we can't do something
to a religious entity entity,
994
00:42:06,356 --> 00:42:08,990
we can't do it to social media
companies and vice versa.
995
00:42:08,990 --> 00:42:12,710
And in fact, our law is just
very, very, very comfortable
996
00:42:12,710 --> 00:42:15,170
with treating religious
institutions differently
997
00:42:15,170 --> 00:42:16,745
than other institutions.
998
00:42:16,745 --> 00:42:18,530
And, and that case, that example
999
00:42:18,530 --> 00:42:21,830
of reading a generally
applicable law narrowly only
1000
00:42:21,830 --> 00:42:24,080
to create an exemption to
religious institutions is just an
1001
00:42:24,080 --> 00:42:25,820
example how comfortable our law is
1002
00:42:25,820 --> 00:42:27,710
with religious institutions
being different.
1003
00:42:27,710 --> 00:42:28,730
- So I appreciate that.
1004
00:42:28,730 --> 00:42:32,300
But in addition to religious
institutions being different,
1005
00:42:32,300 --> 00:42:34,640
speech institutions are different too.
1006
00:42:34,640 --> 00:42:37,100
The Boy Scouts prevailed
in their challenge
1007
00:42:37,100 --> 00:42:40,580
to a non-discrimination law, even though
1008
00:42:40,580 --> 00:42:42,110
they have a religious component to it.
1009
00:42:42,110 --> 00:42:43,550
But that, but they prevailed under free
1010
00:42:43,550 --> 00:42:45,200
speech laws challenge.
1011
00:42:45,200 --> 00:42:50,000
And likewise, there are
cases that actually say
1012
00:42:50,000 --> 00:42:53,900
that, that speaking organizations
may in fact discriminate
1013
00:42:53,900 --> 00:42:55,190
based on race
1014
00:42:55,190 --> 00:42:58,400
and such in choosing people whom
1015
00:42:58,400 --> 00:42:59,600
who are going to be on screen.
1016
00:42:59,600 --> 00:43:01,610
There was a case involving
I think the Bachelor,
1017
00:43:01,610 --> 00:43:03,500
which was accused of
discriminating based on race
1018
00:43:03,500 --> 00:43:05,120
and selecting the contestants.
1019
00:43:05,120 --> 00:43:07,790
And the district court
said, well, they're entitled
1020
00:43:07,790 --> 00:43:09,770
to choose based on race whom they,
1021
00:43:09,770 --> 00:43:11,480
whom they depict on screen.
1022
00:43:11,480 --> 00:43:15,980
So what I'm saying is we in, we recognize
1023
00:43:15,980 --> 00:43:18,830
that religious institutions
are protected by the free
1024
00:43:18,830 --> 00:43:20,630
exercise clause, but we also recognize
1025
00:43:20,630 --> 00:43:23,810
that speaking institutions
like social media companies are
1026
00:43:23,810 --> 00:43:25,820
protected by the free speech clause.
1027
00:43:25,820 --> 00:43:29,960
So my suggestion is that if we recognize
1028
00:43:29,960 --> 00:43:31,190
that the same behavior
1029
00:43:31,190 --> 00:43:34,550
that we might label addictive when done
1030
00:43:34,550 --> 00:43:35,810
through religious institutions
1031
00:43:35,810 --> 00:43:36,830
and in a way that, you know,
1032
00:43:36,830 --> 00:43:40,640
involve itself probably a lot
more money in many ways than
1033
00:43:40,640 --> 00:43:43,970
than the the typical
social media platform,
1034
00:43:43,970 --> 00:43:47,000
at least in terms of how
much people give that
1035
00:43:47,000 --> 00:43:51,350
that is something that is, that can't be
1036
00:43:51,350 --> 00:43:53,390
restricted given the pre-exercise clause.
1037
00:43:53,390 --> 00:43:55,130
Maybe we should say the
same thing with regard
1038
00:43:55,130 --> 00:43:58,430
to the free speech clause as
opposed to gambling, as opposed
1039
00:43:58,430 --> 00:44:01,190
to drugs, things that
aren't protected by the free
1040
00:44:02,325 --> 00:44:03,325
- Speech.
1041
00:44:03,325 --> 00:44:05,270
Well I I just add, look
Eugene, if it would be helpful,
1042
00:44:05,270 --> 00:44:06,920
I could put the third
thing I have in my notes,
1043
00:44:06,920 --> 00:44:10,730
which is please, you know
that I agree with you
1044
00:44:10,730 --> 00:44:12,920
that social media companies are protected
1045
00:44:12,920 --> 00:44:14,720
by the free speech clause.
1046
00:44:14,720 --> 00:44:17,150
The question is what
does free speech protect?
1047
00:44:17,150 --> 00:44:20,360
And so first we have to ask if
a given regulation is within
1048
00:44:20,360 --> 00:44:21,440
the coverage of the First Amendment
1049
00:44:21,440 --> 00:44:25,250
or not decide whether it's
regulating expression or not.
1050
00:44:25,250 --> 00:44:27,650
But even if it's regulating expression,
1051
00:44:27,650 --> 00:44:29,600
we then check if it's content
based or content neutral
1052
00:44:29,600 --> 00:44:31,230
and then finally, you know,
1053
00:44:31,230 --> 00:44:32,640
and just go to the religious entity.
1054
00:44:32,640 --> 00:44:33,930
So let's say it's a
regulation that applies
1055
00:44:33,930 --> 00:44:36,120
to religious entity and
we say it is expressive
1056
00:44:36,120 --> 00:44:39,360
and we say, let's say it's
content neutral, then we have
1057
00:44:39,360 --> 00:44:40,500
to talk about state interest.
1058
00:44:42,000 --> 00:44:43,290
Any state interest
1059
00:44:43,290 --> 00:44:47,220
that's focused on protecting
people from religion, you know,
1060
00:44:47,220 --> 00:44:50,370
or protecting people from
being manipulated by religion,
1061
00:44:50,370 --> 00:44:52,800
I would think it's gonna
be a non-starter to a court
1062
00:44:52,800 --> 00:44:54,330
that they're not gonna
be interested in that,
1063
00:44:54,330 --> 00:44:56,850
that state interest because
of the establishment clause
1064
00:44:56,850 --> 00:44:58,800
and the, the free exercise clause.
1065
00:44:58,800 --> 00:45:00,780
On the other hand, if
you get to that stage
1066
00:45:00,780 --> 00:45:02,880
and the state says that
it has a general interest
1067
00:45:03,720 --> 00:45:06,300
in say the psychological
wellbeing of children
1068
00:45:06,300 --> 00:45:10,320
or something like that, then I
think we're back at an Oregon
1069
00:45:10,320 --> 00:45:12,240
v Smith kind of analysis when it comes
1070
00:45:12,240 --> 00:45:14,820
to religious institutions
of asking whether
1071
00:45:14,820 --> 00:45:16,680
or not that violates free exercise clause,
1072
00:45:16,680 --> 00:45:20,280
but only the religious institution
can make that argument.
1073
00:45:20,280 --> 00:45:21,450
Facebook, unless
1074
00:45:21,450 --> 00:45:23,520
and until it claims to be
a religious institution,
1075
00:45:23,520 --> 00:45:25,290
can't make a free
exercise clause argument.
1076
00:45:25,290 --> 00:45:27,840
It has to try to fight a state
interest in protecting the
1077
00:45:27,840 --> 00:45:30,090
psychological wellbeing
of children on the merits.
1078
00:45:30,090 --> 00:45:33,660
And just another example of
that is Jacobson Jacobson is
1079
00:45:33,660 --> 00:45:34,980
forced vaccination.
1080
00:45:34,980 --> 00:45:36,570
So here we're not limiting
somebody's speech,
1081
00:45:36,570 --> 00:45:39,150
we're actually putting a
syringe in their body in
1082
00:45:39,150 --> 00:45:40,560
order to vaccinate them.
1083
00:45:40,560 --> 00:45:43,650
And the Supreme Court says,
yes, you have a state interest,
1084
00:45:44,490 --> 00:45:45,600
I'm sorry you have a liberty interest,
1085
00:45:45,600 --> 00:45:48,840
but the state's interest in
public health justifies that.
1086
00:45:48,840 --> 00:45:52,290
So we wind up winning after scrutiny and
1087
00:45:53,310 --> 00:45:55,080
nonetheless state, after state
1088
00:45:55,080 --> 00:45:58,560
after state exempts religious
institutions from that mandate
1089
00:45:58,560 --> 00:45:59,970
because they recognize
1090
00:45:59,970 --> 00:46:03,210
that if somebody has a
sincerely held religious belief
1091
00:46:03,210 --> 00:46:04,620
against vaccination, that that's kind
1092
00:46:04,620 --> 00:46:05,910
of a different kettle of fish.
1093
00:46:05,910 --> 00:46:07,800
And so that just goes to, you
know, kind of my point here
1094
00:46:07,800 --> 00:46:10,020
that we're pretty comfortable
that sometimes we have
1095
00:46:10,020 --> 00:46:11,430
to give a wider birth to religion
1096
00:46:11,430 --> 00:46:14,310
because of its unique
place in our history,
1097
00:46:14,310 --> 00:46:16,140
tradition and culture.
1098
00:46:16,140 --> 00:46:18,150
That doesn't mean we also
have to give the benefit of
1099
00:46:18,150 --> 00:46:19,860
that unique place to
social media companies.
1100
00:46:19,860 --> 00:46:23,490
And in fact, I just, I come
back to the power religion has
1101
00:46:23,490 --> 00:46:26,040
because of how it tries to inculcate
1102
00:46:26,040 --> 00:46:28,860
and steer people, like
illustrates the power
1103
00:46:28,860 --> 00:46:30,690
that social media companies can wield
1104
00:46:30,690 --> 00:46:32,220
as they design their apps
1105
00:46:32,220 --> 00:46:35,940
and kind of is what motivates
I think people to think
1106
00:46:35,940 --> 00:46:38,310
that there might be a
justification for some kind
1107
00:46:38,310 --> 00:46:40,590
of state regulation, assuming
1108
00:46:40,590 --> 00:46:41,940
that there's an evidentiary basis
1109
00:46:41,940 --> 00:46:44,700
and it satisfies the
requirement of the framework.
1110
00:46:45,665 --> 00:46:47,490
- Can, can I actually, well
1111
00:46:47,490 --> 00:46:50,070
or I'm gonna take us back to like sort
1112
00:46:50,070 --> 00:46:52,980
of thinking about addiction as what's
1113
00:46:52,980 --> 00:46:55,890
so special about addiction
in terms of its relationship
1114
00:46:55,890 --> 00:46:57,180
to free speech.
1115
00:46:58,050 --> 00:47:01,985
It seems to me that what makes this hard?
1116
00:47:01,985 --> 00:47:05,250
You, you, you are categorizing
these arguments as
1117
00:47:06,450 --> 00:47:09,930
as the sort that actually help
people's freedom of thought.
1118
00:47:11,460 --> 00:47:14,430
And I will agree with, let
let me go to some examples
1119
00:47:14,430 --> 00:47:16,200
where I think I would agree with you
1120
00:47:16,200 --> 00:47:18,330
and then show like sort
of the limits of it.
1121
00:47:18,330 --> 00:47:23,250
So if there were a virtual reality device
1122
00:47:23,250 --> 00:47:26,940
that was so effective that
even though it was only using
1123
00:47:28,600 --> 00:47:31,270
photons and
1124
00:47:31,270 --> 00:47:33,490
and sound waves,
1125
00:47:33,490 --> 00:47:37,570
it just created the physiological
1126
00:47:37,570 --> 00:47:38,680
responses
1127
00:47:38,680 --> 00:47:41,920
or somehow kind of hijacked,
you know, it was, it was so,
1128
00:47:41,920 --> 00:47:44,470
so effective that it would
hijack decision making.
1129
00:47:45,670 --> 00:47:47,410
I would say, okay, it no longer matters
1130
00:47:47,410 --> 00:47:51,640
that these are media, media,
it uses media of communication.
1131
00:47:51,640 --> 00:47:53,920
I'd say it's like a drug
at that point, right?
1132
00:47:53,920 --> 00:47:58,210
So, so there's some point at
which purely communicative
1133
00:48:00,250 --> 00:48:05,140
technologies I think
could have the, you know,
1134
00:48:05,140 --> 00:48:09,550
effect and results that
somehow bypasses free thought
1135
00:48:09,550 --> 00:48:11,320
and then I would be in the
same land that you are.
1136
00:48:11,320 --> 00:48:13,840
I'd say, okay, reg, you
know, it's regulatable
1137
00:48:13,840 --> 00:48:17,410
for the same reason that
drugs are social media
1138
00:48:17,410 --> 00:48:20,470
to me just seems so far from that.
1139
00:48:20,470 --> 00:48:23,500
And so I'm wondering if you
could help me, I mean, you know,
1140
00:48:23,500 --> 00:48:26,350
I I think it would be
useful if I could, you know,
1141
00:48:26,350 --> 00:48:30,910
test whether where you are on
that spectrum by asking you
1142
00:48:30,910 --> 00:48:34,630
to say a little bit about
pornography where a lot of these
1143
00:48:34,630 --> 00:48:37,300
same arguments were made about,
you know, three decades ago
1144
00:48:37,300 --> 00:48:38,500
or so, four decades I'm
1145
00:48:41,110 --> 00:48:42,340
and video games.
1146
00:48:44,740 --> 00:48:47,620
Yeah. I I think starting with
those two, so like if, if,
1147
00:48:47,620 --> 00:48:51,370
you know, given that the first
amendment that that that the,
1148
00:48:51,370 --> 00:48:56,020
you know, that the, that the
arguments that tried to tried
1149
00:48:56,020 --> 00:49:00,700
to be made saying that pornography
sort of bypasses the sort
1150
00:49:00,700 --> 00:49:03,340
of higher order, you know, thought and,
1151
00:49:03,340 --> 00:49:06,370
and is really more conduct than speech.
1152
00:49:06,370 --> 00:49:09,070
Tho those didn't, those
were not persuasive.
1153
00:49:10,750 --> 00:49:13,840
So why should social media's similar
1154
00:49:13,840 --> 00:49:15,400
arguments be persuasive?
1155
00:49:15,400 --> 00:49:17,500
- Yep. And yep.
1156
00:49:17,500 --> 00:49:22,330
So first for pornography
1157
00:49:23,860 --> 00:49:28,690
to me just it's content
based right from the start,
1158
00:49:28,690 --> 00:49:30,910
we're talking about a
particular type of content
1159
00:49:30,910 --> 00:49:32,410
and then the defenders of regulation in
1160
00:49:32,410 --> 00:49:37,330
that space are saying, are saying, well,
1161
00:49:37,330 --> 00:49:39,400
but there's a different history
in everything like that,
1162
00:49:39,400 --> 00:49:41,170
you know, and that
1163
00:49:41,170 --> 00:49:43,330
because it's content based,
it just seems very different
1164
00:49:43,330 --> 00:49:46,000
to me than some of these
questions about the design.
1165
00:49:46,000 --> 00:49:47,020
I guess it would be similar
1166
00:49:47,020 --> 00:49:49,900
to someone saying pro suicide content
1167
00:49:49,900 --> 00:49:53,470
or pro anorexia content is
just inherently captivating
1168
00:49:53,470 --> 00:49:55,540
and then the person
can't get away from it.
1169
00:49:55,540 --> 00:49:57,310
I think it would be analogous to that,
1170
00:49:57,310 --> 00:49:58,630
but that's not what I'm talking about.
1171
00:49:58,630 --> 00:50:02,020
I'm talking about the kind
of way the app is designed
1172
00:50:02,020 --> 00:50:05,740
and the way it presents
material, like how it
1173
00:50:05,740 --> 00:50:09,040
ties out the material it
presents and the infinite scroll
1174
00:50:09,040 --> 00:50:11,290
and the pull to refresh
mechanism and things like this.
1175
00:50:12,280 --> 00:50:14,275
And so that, okay, that's di go
1176
00:50:14,275 --> 00:50:15,275
- Ahead.
1177
00:50:15,275 --> 00:50:16,270
This is, that's a distinction
you were making before,
1178
00:50:16,270 --> 00:50:18,940
but I still don't quite see
it, so, so would a cliffhanger,
1179
00:50:18,940 --> 00:50:22,210
like when a new television
show leaves a cliffhanger
1180
00:50:22,210 --> 00:50:24,520
to get you through the advertisement, is
1181
00:50:24,520 --> 00:50:27,380
that a design feature or
is it content? You know,
1182
00:50:27,380 --> 00:50:29,810
- You know, I kind of love
cliffhangers as an analogy
1183
00:50:29,810 --> 00:50:31,340
because they,
1184
00:50:31,340 --> 00:50:33,440
they keep us reading, you know,
we all know what they are.
1185
00:50:33,440 --> 00:50:34,640
Yeah. It has a name.
1186
00:50:34,640 --> 00:50:37,670
Yeah, I think in 50 years
a lot of things that we
1187
00:50:37,670 --> 00:50:39,980
and our kids experience in social media,
1188
00:50:39,980 --> 00:50:41,720
we'll have names like cliffhangers
1189
00:50:41,720 --> 00:50:44,330
and we'll all know about them
and then we'll be able to say
1190
00:50:44,330 --> 00:50:46,730
that there's kind of consent just
1191
00:50:46,730 --> 00:50:48,320
because we, we already
know about it coming in.
1192
00:50:48,320 --> 00:50:50,570
Like we al we know that that
kind of device has that kind
1193
00:50:50,570 --> 00:50:52,340
of a thing that we don't have today.
1194
00:50:52,340 --> 00:50:56,150
That's another version of me
saying which is which that we,
1195
00:50:56,150 --> 00:50:58,730
we like kinda understand
how cliffhangers work.
1196
00:50:58,730 --> 00:51:01,220
So, so even if my argument got to a space
1197
00:51:01,220 --> 00:51:03,440
that said there ought to be a
thing on the front for parrots
1198
00:51:03,440 --> 00:51:04,820
that say warning eight
1199
00:51:04,820 --> 00:51:06,200
before you give this to your 6-year-old,
1200
00:51:06,200 --> 00:51:08,060
it contains cliffhangers, right?
1201
00:51:08,060 --> 00:51:10,760
I actually think when it says
like, can't put this down,
1202
00:51:10,760 --> 00:51:12,980
that kind of thing,
people know that, right?
1203
00:51:12,980 --> 00:51:14,060
And they, they, they want that,
1204
00:51:14,060 --> 00:51:16,250
they wanna encourage more
reading and that kind of thing.
1205
00:51:16,250 --> 00:51:19,640
So I think that, I think that
1206
00:51:19,640 --> 00:51:21,860
cliffhanger falls in the category
1207
00:51:23,870 --> 00:51:26,330
like the timing of the reward,
1208
00:51:26,330 --> 00:51:28,070
spacing out the exciting content
1209
00:51:29,060 --> 00:51:31,160
where I think we could have a
very interesting fight about
1210
00:51:31,160 --> 00:51:32,990
whether that's expressive or not.
1211
00:51:32,990 --> 00:51:34,790
And then there's things
that just don't fall in
1212
00:51:34,790 --> 00:51:36,560
that category at all.
1213
00:51:36,560 --> 00:51:39,680
Like pull to refresh like
and and things like that.
1214
00:51:39,680 --> 00:51:41,365
No, and no. Yeah. And then pornography.
1215
00:51:41,365 --> 00:51:43,250
Pornography is clearly
content based. Okay.
1216
00:51:43,250 --> 00:51:44,510
Pornography's clearly content based.
1217
00:51:45,350 --> 00:51:47,690
- Okay. - So that's, that's
how I would think about those.
1218
00:51:47,690 --> 00:51:50,150
If I could just add a thing
of what you started with Jane,
1219
00:51:50,150 --> 00:51:52,580
which is that like this device
1220
00:51:52,580 --> 00:51:55,760
that was like just totally
addictive or mind, you know,
1221
00:51:55,760 --> 00:51:57,050
and that, that you would be with me,
1222
00:51:58,310 --> 00:52:01,040
I would just make a pitch
that especially for people
1223
00:52:01,040 --> 00:52:03,680
who love the freedom of
speech that, you know,
1224
00:52:03,680 --> 00:52:04,700
when you have this conversation
1225
00:52:04,700 --> 00:52:07,280
with somebody who's in their
twenties, they know that,
1226
00:52:07,280 --> 00:52:10,100
they know that device exists
and they felt addicted to it
1227
00:52:10,100 --> 00:52:13,760
and it's like TikTok
and so they're, they're,
1228
00:52:13,760 --> 00:52:16,220
they have personally wrestled with this
1229
00:52:16,220 --> 00:52:17,540
and if you go, just go in the app store
1230
00:52:17,540 --> 00:52:19,430
and search social media addiction
1231
00:52:19,430 --> 00:52:23,030
or go searching Google
quit social media, right?
1232
00:52:23,030 --> 00:52:24,350
To talk to a 20-year-old about
1233
00:52:24,350 --> 00:52:26,240
how often they've deleted
their social media app
1234
00:52:26,240 --> 00:52:28,430
and then reinstalled
it two weeks later and,
1235
00:52:28,430 --> 00:52:31,880
and then not wanted to or,
or other steps they've taken.
1236
00:52:31,880 --> 00:52:33,650
I think we have a generation coming up,
1237
00:52:33,650 --> 00:52:36,020
this is just my perspective that
1238
00:52:36,020 --> 00:52:37,790
is already there with a lot
of these social media apps.
1239
00:52:37,790 --> 00:52:38,960
'cause they had experienced it,
1240
00:52:38,960 --> 00:52:41,240
they've experienced
compulsive use that interfered
1241
00:52:41,240 --> 00:52:43,040
with their studies, that
interfered with their lives.
1242
00:52:43,040 --> 00:52:45,800
Many of them see themselves
as in recovery from this.
1243
00:52:45,800 --> 00:52:47,930
And here I would say those
people are gonna be very
1244
00:52:47,930 --> 00:52:49,730
supportive of regulation in this space.
1245
00:52:50,660 --> 00:52:54,110
And it can go two ways.
It can go for that though.
1246
00:52:54,110 --> 00:52:55,730
Such people, public health
1247
00:52:55,730 --> 00:52:58,310
regulation, this very broad thing.
1248
00:52:58,310 --> 00:53:00,620
Or it can go, we're
regulating addictive design.
1249
00:53:00,620 --> 00:53:03,770
We can regulate intermittent
reinforcement in that world,
1250
00:53:03,770 --> 00:53:05,420
which we might be in in 20 years.
1251
00:53:05,420 --> 00:53:08,450
The addictive design route is
much more speech protective
1252
00:53:08,450 --> 00:53:11,330
as a justification for
regulation in this than the other
1253
00:53:11,330 --> 00:53:12,830
route that will be very tempting,
1254
00:53:12,830 --> 00:53:15,350
which is just public health
or like Justice Thomas might
1255
00:53:15,350 --> 00:53:17,540
say, it's parental control over speech
1256
00:53:17,540 --> 00:53:18,650
and that, you know, so just,
1257
00:53:18,650 --> 00:53:20,720
you can do whatever you, you
know, something like that.
1258
00:53:20,720 --> 00:53:23,390
So I don't think this is
all like pro-free speech,
1259
00:53:23,390 --> 00:53:24,920
anti-free speech here.
1260
00:53:24,920 --> 00:53:26,610
I actually think there's
an extent to which or,
1261
00:53:26,610 --> 00:53:29,640
or lane through which focusing
on the addictiveness winds up
1262
00:53:29,640 --> 00:53:31,770
being more speech protective overall,
1263
00:53:32,700 --> 00:53:34,530
even if it does require some,
1264
00:53:34,530 --> 00:53:37,110
some give from free speech advocates.
1265
00:53:37,110 --> 00:53:40,530
- Alright, well we are
coming on the one hour mark
1266
00:53:40,530 --> 00:53:45,530
and unfortunately our, our
listeners are not addicted.
1267
00:53:45,900 --> 00:53:48,180
If they were, we could three hours
1268
00:53:48,180 --> 00:53:50,550
and they wouldn't be able to put it down.
1269
00:53:51,930 --> 00:53:53,490
And engaging
1270
00:53:53,490 --> 00:53:57,600
and interesting as this has
been, there is a limit limit
1271
00:53:57,600 --> 00:53:59,550
to their patients, regrettably.
1272
00:53:59,550 --> 00:54:03,480
So Matt, thank you so
much for, for joining us
1273
00:54:03,480 --> 00:54:07,290
and for listening to our top questions
1274
00:54:07,290 --> 00:54:09,240
and giving, giving great answers to them.
1275
00:54:10,230 --> 00:54:11,850
Jane, thanks as always,
1276
00:54:11,850 --> 00:54:13,950
always a great pleasure
to be on with you as well.
1277
00:54:13,950 --> 00:54:18,270
And listeners, we hope you're
hooked enough, at least
1278
00:54:18,270 --> 00:54:20,670
that you're going to come
back for the next episode,
1279
00:54:20,670 --> 00:54:21,900
which will be coming in a few weeks.
1280
00:54:25,080 --> 00:54:28,320
- This podcast is a production
of the Hoover Institution,
1281
00:54:28,320 --> 00:54:32,130
where we generate and promote
ideas advancing freedom.
1282
00:54:32,130 --> 00:54:34,500
For more information about
our work, to hear more
1283
00:54:34,500 --> 00:54:35,760
of our podcasts
1284
00:54:35,760 --> 00:54:39,210
or view our video content,
please visit hoover.org.