Welcome back.

Welcome back, the tech policy podcast.

I'm Corbyn Barthold.

On an episode last year, I went on a short diatribe about Justice Amy Coney-Barritt's concurrence in Moody v. Netchoice.

That's the one where she questioned whether the First Amendment has anything to say

in situations where an algorithm or AI does, how to put it, too much work in making editorial decisions

for a editor.

What if a platform's algorithm, she asked, just presents automatically to each user, whatever the

algorithm thinks the user were like,

e.g. content similar to posts with which the user previously engaged. And what about AI?

She went on. What if a platform's owners hand the reins to an AI tool and ask it simply to

remove, quote, hateful content.

She worried that in these situations, perhaps a human being with First Amendment rights

has not made an inherently expressive choice.

The way services, quote, use this sort of technology, she concluded, might have constitutional significance.

As I said in my critique, there seems to be an assumption here that algorithms just spring up.

You say, algorithm, go. It's true, I noted, that AI researchers don't know precisely how LLMs work,

ditto social media and algorithms,

and that they can't predict precisely what they will do,

but they are constantly tweaking these things.

Never mind, I went on, the fact that having algorithms give the user what they want is

itself an expressive choice.

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