Earlier this year, CCIA testified on California’s SB 976, the “Protecting Our Kids from Social Media Addiction Act,” and urged state officials to maintain their pursuit of protecting kids online while stripping from it the language that undermines our privacy, our constitutional rights, and innovation. We raised concerns that key provisions of the bill “lacked sufficient clarity or scientific support,” noting that “terms such as ‘addiction’ or ‘addictive remain inadequately defined” and recommended changes to the proposed legislation.
This week, CCIA and the Software Information Industry Association (SIIA) filed joint amicus briefs with the U.S. Court of Appeals for the Ninth Circuit in support of three separate lawsuits brought by Meta, TikTok, and Google (YouTube) challenging SB 976. The cases challenge a lower court decision that stripped constitutional protections from “personalized feeds,” claiming that using algorithms to recommend content that users find engaging is not expressive speech. CCIA and SIIA pushed back against the lower court’s decision, arguing that using algorithms to organize, rank, and personalize digital content is a fundamental constitutional right and therefore protected under the First Amendment.
The court’s ruling reflected a misunderstanding of the role of algorithms and failed to appreciate that algorithms do not act on their own. Instead, algorithms are simply tools designed to carry out legal human editorial decisions and policies. Whether a platform chooses to host news, artists or creators of some format, foster community discussion, or more, these curating choices reflect human judgment. The choices a service makes about how to rank what its users see are made by humans who write or use pre-existing code to carry out those editorial decisions, and – as the Supreme Court recognized in Moody v. NetChoice – those expressive choices are protected by the First Amendment. Our brief states that “the district court erred when it concluded that website operators’ editorial and curatorial judgments are not ‘expressive’ when they rely on ‘predictive algorithms’.”
The fact that these algorithms recommend content that users want or find engaging does not change the analysis. Publishers of all stripes have long curated their materials to appeal to their customers and have enjoyed First Amendment protections for doing so. For example, an independent bookstore may arrange its window displays to match local tastes, a clear exercise in editorial discretion. This provides value for the customers searching for books along their interests and supports a local business. Newspapers likewise organize their content to facilitate user interests. Similarly, digital platforms exercise protected expression when they organize personal feeds based on a user’s past activity and preferences. Courts have consistently found that recommendations and opinions are protected speech, and adopting modern technology to deliver those recommendations does not forfeit First Amendment rights.
Given the sheer volume of online information, algorithms play a key role in enabling expression. Hundreds of millions of posts, photos, and videos are uploaded online every single day. This is unimaginably large amounts of data, and all of this content cannot be reviewed manually. Automated tools such as algorithms are the only way many services can function, organize, and moderate the content they host.
Indeed, algorithmic curation is the primary mechanism that many digital services use to protect young users online. Platforms use automated systems to remove objectionable material, filter out harmful content, and elevate age-appropriate content to users. Undermining the right to curate content makes it harder, not easier, to protect minors and maintain a safe space for children online.
As CCIA President and CEO, Matt Schruers stated, “[b]oth the First Amendment and Section 230 provide protections for the editorial decisions websites make about what third-party content to feature. Courts have made clear that these editorial choices receive First Amendment protections independent of the technology used to make them.”
Protecting children online is a widely shared goal, and it can be achieved without infringing upon our constitutional rights. Safeguarding the freedom to curate digital content ensures that platforms can continue to build safe, diverse, and engaging environments for everyone, young users included.
