As Trump threatens new regulations for Google, Facebook, and Twitter, experts say legal precedents show algorithms may be protected under the First Amendment
Jared Schroeder / Columbia Journalism Review : Tweets: @jonathanwpeters Tweets: Jonathan Peters / @jonathanwpeters : Regulating algorithms might seem like new territory, but, as @Clipper56 writes in @CJR, a newspaper case from 1974 (1974!) has a lot to say about whether the govt can control, under the 1st Amend, companies' algorithms and how they produce/organize info. http://www.cjr.org/... http://twitter.com/...
Context & Ripple Effects
This CJR analysis lands mid-2018, when politicians were already accusing search and social media firms of censorship and arguing the real problem was opaque ranking systems and reckless amplification of harmful content (Wired made that case days earlier). Jared Schroeder's contribution is doctrinal: a 1974 newspaper case suggests the government cannot dictate how publishers decide what to run — and algorithms, as editorial decision-making machinery, may inherit that protection.
The argument proved durable. The DOJ's later push to condition Section 230 immunity (proposed legislation opening Facebook, Google, and Twitter to added liability) and the Supreme Court's eventual take-up of algorithmic recommendation in Gonzalez v. Google (previewed ahead of the February 2023 hearing) both had to reckon with the same question this piece framed: does the First Amendment shield how platforms organize information?
First-order effects
- Google, Facebook, and Twitter gain a constitutional defense layer against Trump's threatened regulation: if expert readings of the 1974 precedent hold, Congress cannot compel or forbid specific editorial outputs of their ranking systems.
Second-order effects
- Lawmakers who find direct algorithm mandates blocked shift to indirect levers — the DOJ's Section 230 conditions target liability shields rather than speech itself, a route designed to survive First Amendment scrutiny.
Third-order effects
- Algorithmic curation becomes a settled First Amendment battleground: subsequent scholarship on regulating social media algorithms (the Washington Post's assessment that such rules are very hard to get right) and the Gonzalez v. Google litigation show courts, not legislators, deciding how much control government has over recommendation systems.
The trend: Platform governance is migrating from legislative threats toward constitutional adjudication, with courts determining whether algorithmic ranking counts as protected editorial speech.