Algorithms, Machine Learning, and Speech: The Future of the First Amendment in a Digital World

Abstract

We increasingly depend on algorithms to mediate information and thanks to the advance of computation power and big data, they do so more autonomously than ever before. At the same time, courts have been deferential to First Amendment defenses made in light of new technology. Computer code, algorithmic outputs, and arguably, the dissemination of data have all been determined as constituting “speech” entitled to constitutional protection. However, continuing to use the First Amendment as a barrier to regulation may have extreme consequences as our information ecosystem evolves. This paper focuses on developing a new approach to determining what should be considered “speech” if the First Amendment is to continue to protect the marketplace of ideas, individual autonomy, and democracy.