aceregulation of personal-data-driven algorithmic targeting and manipulative design features on social media platforms
Source article: Regulating Manipulative Design Is Not Preempted by CDA 230 or the First Amendment
Abstract: For over two decades, there has been a heated debate among legal scholars, activists, judges, and others about the scope of Section 230 of the Communications Decency Act. A persistent theme in those debates has been hyperbolic claims about the necessity of immunity from state laws for digital tech platforms and fearmongering that anything less than maximum immunity will destroy the Internet. This Article argues that states retain considerable discretion to regulate digital platforms’ design and engineering decis…
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Published July 6 2026, this law review article argues that Section 230 and the First Amendment do not categorically immunize digital platforms for harms caused by their own design choices. It proposes a typology separating direct primary harms from design decisions from secondary harms from user content and tertiary harms, focusing on personal-data-driven algorithmic targeting and dark patterns like infinite scrolling.
The distinction matters because it would empower state policymakers and judges to regulate manipulation as a defective-design problem rather than as protected expression. What remains uncertain is how courts will apply the typology in practice and where the line between regulable engineering and immunized expressive decisions will be drawn in ongoing state regulations and tort litigation.
- Article develops typology distinguishing direct harms from platforms' own design decisions from secondary harms from user-generated content and tertiary harms.
- Focuses on personal-data-driven algorithmic targeting as manipulative design causing primary harm, alongside infinite scrolling and other dark patterns.
- Argues manipulation includes hijacking attention, disabling autonomy, undermining self-governance, scripting behaviors, and engineering addiction.
State regulators and courts retain discretion to regulate platform design and engineering decisions as content-agnostic conduct not categorically immunized by Section 230 or the First Amendment.
Personal-data-driven algorithmic targeting and other manipulative design features like infinite scrolling directly cause primary harms of manipulation, including hijacking attention, overriding user autonomy, and engineering addiction.
The rundown
The authors argue that hyperbolic claims about necessity of maximum immunity for platforms have distorted Section 230 debates, and that careful delineation of actors, actions, causal relationships, effects, and harms shows design defects are regulable.
They note their approach is consistent with current law and is already surfacing in recent state regulations and in litigation over social media platforms' tortious design, separating primary manipulation harms from secondary content-moderation failures.
Sources
- Peer-reviewedeYLS (Yale Law School)2026-07-06
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The debate