“It’s going to be situational. In the Moody/Paxton cases, NetChoice was angling for them to say that newsfeed generation is always expressive, but the Court rejected this overbroad strategy,” McBrien said. “It remanded the case for the lower courts to parse through the arguments more granularly: what exact newsfeed-construction activities are implicated by the laws, which are claimed to be expressive, are they really expressive, etc.”
The Justices, however, were open to the idea that using algorithms to do something expressive might receive less First Amendment protection, depending on the specifics of the algorithm such as how closely and faithfully it carries out the human being’s message, according to McBrien.
Specifically, the majority thought when content curators (social media) enforce content and community guidelines, such as prohibitions on harassment or pro-Nazi content, those activities receive First Amendment protections. “So, when an algorithm is used to enforce those guidelines, the majority said it might receive First Amendment protections,” he said.