University of Cincinnati Law Review


Inyoung Cheong


Can content moderation on social media be considered a form of speech? If so, would government regulation of content moderation violate the First Amendment? These are the main arguments of social media companies after Florida and Texas legislators attempted to restrict social media platforms’ authority to de-platform objectionable content.

This article examines whether social media companies’ arguments have valid legal grounds. To this end, the article proposes three elements to determine that algorithms classify as “speech:” (1) the algorithms are designed to communicate messages; (2) the relevant messages reflect cognitive or emotive ideas beyond mere operational matters; and (3) they represent the company’s standpoints. The application of these elements makes it clear that social media algorithms can be considered speech when algorithms are designed to express companies’ values, ethics, and identity (as they often are).

However, conceptualizing algorithms as speech does not automatically award a social media company a magic shield against state or federal regulation. It is true that social media platforms’ position is likely to be favored by the U.S. Supreme Court, which has increasingly taken an all-or-nothing approach whereby “all speech invokes strict scrutiny of government regulation.” Instead, this article argues for the restoration of the Court’s approach prior to the 1970s, when decisions emphasized considerations such as the democratic values of speech, the irreplaceability of forums, and the socioeconomic inequality of speakers and audiences.

Under the latter principles, social media companies’ market dominance and their harmful effect on juveniles or political polarization would justify legislative efforts to increase algorithmic transparency even if they restrict social media’s free speech. Therefore, most big tech companies’ algorithms can and should be regulated for legitimate government purposes.