Amy Cyphert (West Virginia University – College of Law) and Jena Martin (same) have posted “‘A Change is Gonna Come:’ Developing a Liability Framework for Social Media Algorithmic Amplification” (U.C. Irvine Law Review, Vol. 13 (2022)) on SSRN. Here is the abstract:

From the moment social media companies like Facebook were created, they have been largely immune to suit for the actions they take with respect to user content. This is thanks to Section 230 of the Communications Decency Act, 47 U.S.C. § 230, which offers broad immunity to sites for content posted by users. But seemingly the only thing a deeply divided legislature can agree on is that Section 230 must be amended, and soon. Once that immunity is altered, either by Congress or the courts, these companies may be liable for the decisions and actions of their algorithmic recommendation systems, artificial intelligence models that sometimes amplify the worst in our society, as Facebook whistleblower Frances Haugen explained to Congress in her testimony.

But what, exactly, will it look like to sue a company for the actions of an algorithm?

Whether through torts like defamation or under certain statutes, such as those aimed at curbing terrorism, the mechanics of bringing such a claim will surely occupy academics and practitioners in the wake of changes to Section 230. To that end, this Article is the first to examine how the issue of algorithmic amplification might be addressed by agency principles of direct and vicarious liability, specifically within the context of holding social media companies accountable. As such, this Article covers the basics of algorithmic recommendation systems, discussing them in layman’s terms and explaining why Section 230 reform may spur claims that have a profound impact on traditional tort law. The Article looks to sex trafficking claims made against social media companies—an area already exempted from Section 230’s shield—as an early model of how courts might address other claims against these companies. It also examines the potential hurdles, such as causation, that will remain even when Section 230 is amended. It concludes by offering certain policy considerations for both lawmakers and jurists.

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Jack M. Balkin (Yale Law School) has posted “Free Speech Versus the First Amendment” (UCLA Law Review, Forthcoming) on SSRN. Here is the abstract:

The digital age has widened the gap between the judge-made doctrines of the First Amendment and the practical exercise of freedom of speech. Today speech is regulated not only by territorial governments but also by the owners of digital infrastructure — for example, broadband and cellular providers, caching services, app stores, search engines, and social media companies. This has made First Amendment law less central and the private governance of speech more central.

When the free speech interests of digital companies and their end-users conflict, the major beneficiaries of First Amendment rights are likely to be the former and not the latter. Digital companies will try to use the First Amendment to avoid government regulation, including regulation designed to protect the free speech and privacy interests of end-users.

In response, internet reformers on both the left and the right will attempt to de-constitutionalize internet regulation: They will offer legal theories designed to transform conflicts over online speech from First Amendment questions into technical, statutory and administrative questions. In the U.S., at least, de-constitutionalization is the most likely strategy for imposing public obligations on privately-owned digital companies. If successful, it will make the First Amendment even less important to online expression.

The speed and scale of digital speech have also transformed how speech is governed. To handle the enormous traffic, social media companies have developed algorithmic and administrative systems that do not view speech in terms of rights. Accompanying these changes in governance is a different way of thinking about speech. In place of the civil liberties model of individual speech rights that developed in the twentieth century, the emerging model views speech in hygienic, epidemiological, environmental, and probabilistic terms.

The rise of algorithmic decisionmaking and data science also affect how people think about free expression. Speech becomes less the circulation of ideas and opinions among autonomous individuals and more a collection of measurable data and network connections that companies and governments use to predict social behavior and nudge end-users. Conceived as a collection of data, speech is no longer special; it gets lumped together with other sources of measurable and analyzable data about human behavior that can be used to make predictions for influence and profit.

Meanwhile, the speed and scale of digital expression, the scarcity of audience attention, and social media’s facilitation of online propaganda and conspiracy theories have placed increasing pressure on the standard justifications for freedom of speech, including the pursuit of truth and the promotion of democracy. The gap between the values that justify freedom of speech and what the First Amendment actually protects grows ever wider.

In response, some scholars have argued that courts should change basic First Amendment doctrines about incitement, defamation, and false speech. But it is far more important to focus on regulating the new forms of informational capitalism that drive private speech governance and have had harmful effects on democracy around the globe.

The digital age has also undermined many professions and institutions for producing and disseminating knowledge. These professions and institutions are crucial to the health and vitality of the public sphere. Changing First Amendment doctrines will do little to fix them. Instead, the task of the next generation is to revive, reestablish and recreate professional and public-regarding institutions for knowledge production and dissemination that are appropriate to the digital age. That task will take many years to accomplish.

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