Addicted to Vagueness: Lawmakers Can’t Regulate Social Media by Vibes

Key Takeaways

• Arkansas courts deem vague platform‑design liability statutes unconstitutional
• California treats infinite scroll as conduct, not speech, allowing tort claims
• First Amendment analysis hinges on whether algorithms are editorial choices
• Negligence standards may survive if courts view features as ordinary conduct
• Broad liability regimes risk chilling speech and prompting over‑censorship

Pulse Analysis

The legal battle over social‑media design features is less about UI aesthetics and more about constitutional doctrine. Courts must decide if algorithms, infinite scroll and autoplay are merely product‑design choices—subject to ordinary negligence and unfair‑trade‑practice standards—or if they constitute editorial discretion protected by the First Amendment. When a law targets the way platforms curate and present third‑party speech, the Supreme Court’s vagueness test becomes stricter, demanding clear notice of prohibited conduct. Arkansas’s recent decisions illustrate this heightened scrutiny, striking down statutes that left platforms guessing how to avoid liability for "addictive" designs.

Treating platform features as conduct simplifies enforcement, allowing plaintiffs to argue that designers owed a duty of care to users, especially minors, and breached it by creating foreseeable harms. This approach aligns with traditional tort principles, where reasonableness provides sufficient notice despite its inherent flexibility. However, the conduct‑based view sidesteps the core First Amendment question: whether curating, ranking and presenting speech is itself expressive activity. If courts adopt this lens, they risk eroding the protective shield that has historically allowed newspapers and broadcasters to decide how to package content.

The stakes extend beyond courtroom semantics. A ruling that enforces vague, "vibes‑based" liability could force platforms to blunt engaging features, leading to over‑censorship and a less vibrant digital public square. Conversely, a clear constitutional framework that respects editorial discretion while permitting targeted, transparent regulations—such as parental‑control tools or age‑verification mechanisms—offers a balanced path forward. Policymakers and tech firms alike should focus on narrowly tailored, user‑empowering solutions rather than broad, ambiguous statutes that threaten both innovation and free expression.