Platforms, the First Amendment and Online Speech: Regulating the Filters

Abstract

In recent years, online platforms have given rise to multiple discussions about what their role is, what their role should be, and whether they should be regulated. The complex nature of these private entities makes it very challenging to place them in a single descriptive category with existing rules. In today’s information environment, social media platforms have become a platform press by providing hosting as well as navigation and delivery of public expression, much of which is done through machine learning algorithms. This article argues that there is a subset of algorithms that social media platforms use to filter public expression, which can be regulated without constitutional objections. A distinction is drawn between algorithms that curate speech for hosting purposes and those that curate for navigation purposes, and it is argued that content navigation algorithms, because of their function, deserve separate constitutional treatment. By analyzing the platforms’ functions independently from one another, this paper constructs a doctrinal and normative framework that can be used to navigate some of the complexity. The First Amendment makes it problematic to interfere with how platforms decide what to host because algorithms that implement content moderation policies perform functions analogous to an editorial role when deciding whether content should be censored or allowed on the platform. Content navigation algorithms, on the other hand, do not face the same doctrinal challenges; they operate outside of the public discourse as mere information conduits and are thus not subject to core First Amendment doctrine. Their function is to facilitate the flow of information to an audience, which in turn participates in public discourse; if they have any constitutional status, it is derived from the value they provide to their audience as a delivery mechanism of information. This article asserts that we should regulate content navigation algorithms to an extent. They undermine the notion of autonomous choice in the selection and consumption of content, and their role in today’s information environment is not aligned with a functioning marketplace of ideas and the prerequisites for citizens in a democratic society to perform their civic duties. The paper concludes that any regulation directed to content navigation algorithms should be subject to a lower standard of scrutiny, similar to the standard for commercial speech.