Scholar Examines First Amendment Coverage of Algorithmic Content Moderation

The Supreme Court held in Moody v. NetChoice that algorithmic prioritization of content by social media platforms qualifies as speech under the First Amendment. The decision invalidated laws that sought to regulate websites' substantive algorithmic decisions.

Many observers have expressed concern about the ruling's effects on content moderation practices. Proposed responses to the Moody decision include treating social media platforms as state actors or as common carriers. Another approach would exclude editorial judgments made by monopolists from First Amendment coverage.

The author states that excluding monopolists from coverage is the strongest candidate among these responses. It avoids arbitrary distinctions and focuses on companies that lack significant competitors. The article also considers expanding the Moody line of cases.

One possibility is that audience interests alone are sufficient to trigger First Amendment coverage for messages generated by artificial intelligence without meaningful human involvement. The author expresses caution toward both limiting and expanding the existing jurisprudence.

The writer prefers to avoid ad hoc exceptions based on market power and favors restraint in extending protection to speech generated entirely by AI.

The author suggests these issues will become more contentious as social media platforms grow more influential and the prospect of artificial general intelligence advances. Reactions to the treatment of algorithmic editorial decisions may increasingly align with views on those two developments rather than traditional First Amendment divisions.

The ground is shifting beneath our feet in this and other areas, destabilizing current debates.