• by Wendy Davis , 91 minutes ago

Siding with Google, Meta and TikTok, a group of law professors are urging an appellate court to rule that algorithmic recommendations are protected by the First Amendment.

"The First Amendment does not distinguish between content moderation and personalization," Erwin Chemerinsky, dean of University of California, Berkeley School of Law, and other professors argue in a friend-of-the-court brief filed Tuesday with the 9th Circuit Court of Appeals.

"The First Amendment protects judgments about both what to say and how to say it, including whether individual messages fit together in a specific compilation," the academics add.

Their brief comes in a battle over California's 2024 Protecting Our Kids From Social Media Addiction Act (SB976), which prohibits social platforms from algorithmically recommending posts to minors under 18 without the consent of a parent or guardian.

The platforms sought to block the law, contending that their recommendations are editorial speech and therefore constitutionally protected.

"Nearly all online publishers and streaming platforms -- from the New York Times to Netflix -- now consider individualized preferences in determining what content to publish and how to present it to their users," TikTok wrote in its bid to block enforcement. Google and Meta made similar arguments.

U.S. District Court Judge Edward Davila in the Northern District of California recently rejected the tech companies' positions, writing that personalized recommendations aren't the type of "expressive" speech covered by the First Amendment.

He wrote that the platforms "rely on predictive algorithms that incorporate users’ past watch history and other data and then suggest content that the algorithms anticipate will be engaging, or 'interesting' to users."

Davila added that the decision "to rely on these algorithms’ number-crunching capabilities is not an expressive judgment."

The platforms are now appealing that ruling, and have asked the 9th Circuit to block enforcement while their appeal proceeds.

The law professors argue in their friend-of-the-court brief that personalized recommendations are a form of editorial curation.

"Curating content based on its relationship to previously displayed content is itself protected First Amendment expression," Erwin Chemerinsky, dean of University of California, Berkeley School of Law, and other professors argue.

The professors also say it's irrelevant whether platforms use algorithms to make recommendations, adding that the software fueling the recommendations is "written by humans to embody their -- or their employers’ -- editorial preferences."

Other groups including advocacy groups Center for Democracy & Technology, Electronic Frontier Foundation and Wikimedia Foundation are also backing the platforms.

Those groups added in a separate friend-of-the-court brief filed Tuesday that the California law impinges on teens' First Amendment rights.

They say the law "frustrates young people’s ability to use the internet to its full potential, prohibiting them from relying on tools that disseminate their speech and help them view and interact with other users’ speech."

"SB 976 creates significant, constitutionally violative, burdens on young users’ ability to read and comment on the news, discuss politics, find and share art, share their religious beliefs, or even practice their religion with fellow members of their faith," those groups write, adding, "There is simply too much content on services for users to sift through manually, and young users may not know what to search for or even how to find content."

The 9th Circuit hasn't yet indicated when it will rule on the platforms' request to block the law.