Free Speech

Eugene Volokh | 9.24.2025 8:01 AM

I have a forthcoming article with this title in an Emory Law Journal symposium issue, so I thought I'd serialize it here; there's plenty of time to improve it, so I'd love to hear people's feedback.

The background is, of course, the calls to regulate social media platforms and video games on the theory that they are unduly addictive. You'll see I'm skeptical about that. I start by arguing that similar arguments could be made as to religious practice, but that we should reject such regulations of "addictive" religious practice as violating religious freedom. I then argue that, analogously, we should reject regulations of "addictive" communicative products as violating the Free Speech and Free Press Clauses.

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Introduction

Most behavior that is potentially addictive to some people is also pleasant and largely harmless to others. Gambling is a classic example: It seriously harms some people, but provides fairly inexpensive pleasure to others. Indeed, this is true even for some physiologically addictive substances, such as alcohol and likely some other drugs. There are many alcoholics, but many more nonaddicted social drinkers who genuinely enjoy moderate drinking.

Of course, for many behaviors, this effect just requires legislatures to ask a familiar regulatory tradeoff question: When should the freedom of some (even of many) be restricted to prevent harm to others? Different legislatures may answer this question differently as to different activities.

But when the behavior is also constitutionally protected, the problem becomes more difficult: Restricting the constitutional rights of some in order to prevent harms—especially self-inflicted harms—to others generally requires much more justification. This short essay will delve deeper into this question, focusing especially on free exercise rights and free speech/free press rights.

I. Religion

A. Adults

Many of the arguments that label certain interactions with speech products as "addiction" would apply much the same way to religious practices (whether or not the arguments' supporters would seek to so apply them). Yet I take it—and I will defend this in more detail below—that few of us would accept such arguments as a basis for restricting such religious behavior.

a. Harm

To begin with, religious practice, like supposedly addictive speech, can lead to economic loss and physical and mental harm. Some people may join religious groups that pressure them to donate substantial sums—perhaps as recurring 10% tithes,[1] or as occasional larger contributions[2]—with the pressure coming from the threat of social ostracism or eternal damnation, or from the promise of community or eternal salvation. That is presumably more serious pressure for most people than the pressure to make more in-game purchases.

Some people may adopt religious beliefs that are bad for their physical health, for instance if the beliefs counsel in favor of faith healing rather than modern medical treatment.[3] Some people may adopt religious beliefs that are bad for their mental health, for instance if the beliefs make them feel guilty because of their sexual preferences or desires.

Some may be drawn to practices that damage their relationships with family members or cause them to "neglecting personal and family commitments."[4] Certain religious practices expressly call on people to set aside "family commitments," for instance by joining monastic orders[5] or by choosing to break off relationship with family members who are seen as sinful or unbelieving.[6]

Some religious people may take life paths that are hard for them to leave, for instance if a woman joins a religious community that frowns on women's educational or professional advancement, and therefore faces a much reduced set of life options if she were to leave the community.[7] Likewise, if they choose to have children—which the religious group may pressure them into doing, or into doing earlier or more often that they might like—they may find themselves locked in to the community, for fear of losing their relationship with the children if they lose their relationship with the community.[8] And some may indeed exhibit psychological withdrawal symptoms, such as "experiencing distress when unable to engage in religious activities."[9]

b. Nonrational decisions and emotional vulnerability

What's more, people may join religions not because of rational choice—much religious belief, after all, stems from nonrational causes—but in large part because of techniques used by religious leaders. Those techniques might not be the result of recent intense market research,[10] but they have been carefully honed over centuries or millennia of institutional experience.

The techniques may appeal to people's most basic fears and hopes. The techniques may rely on social pressure to which the target is highly vulnerable, perhaps because of loneliness, sadness, physical illness, mental illness, or consciousness of impending death. Indeed, one might characterize them, borrowing a term from an article that urges regulation of addictive social media and gaming technologies, as........

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