The Case that Social Media Algorithms are a Violation of Civil Rights

By Tim McGuinness, Ph.D., DFin, MCPO, MAnth

The argument that social media algorithms limit the visibility of content you explicitly follow could be seen as a violation of your right to choose and possibly your civil rights hinges on several key points involving free speech, privacy, and the right to access information.

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Here's the argument:

Right to Choose and Freedom of Expression:

Overview

First Amendment Rights: The First Amendment of the U.S. Constitution guarantees the right to freedom of speech and the press. While this amendment primarily restricts government action, the principle of free speech extends into the digital realm. The argument here is that if social media platforms, through their algorithms, selectively reduce the visibility of content you wish to see, they might be infringing on your right to receive information, which is an integral part of free speech.

In Depth

The concepts of the "Right to Choose" and "Freedom of Expression" are deeply intertwined, particularly in the context of digital platforms like social media. Here's an expansion on how these rights apply to your scenario:

1. Freedom of Expression:

First Amendment: This amendment to the U.S. Constitution protects the freedom of speech, religion, press, assembly, and petition. At its core, freedom of expression includes not only the right to speak but also the right to hear and receive information.

2. Right to Choose:

Autonomy Over Information: The right to choose what media or information you consume is part of personal autonomy. This right becomes particularly pertinent in the digital age where algorithms dictate much of what we see, potentially without our consent or awareness.

3. Intersection of Rights in Social Media:

Algorithmic Transparency: There's an emerging argument that users should have transparency into how algorithms work, especially if these algorithms affect what information they can access or engage with. This transparency would support the right to choose by allowing users to understand and potentially counteract algorithmic biases.

Platform Responsibility: While platforms have traditionally been seen as having editorial discretion over content, the scale and influence of social media have led to discussions about whether there should be a duty to ensure users can access the content they seek, particularly if they've explicitly followed or subscribed to it.

4. Legal Precedents and Challenges:

Balancing Act: There's a delicate balance between the platform's rights to manage content for various reasons (e.g., preventing misinformation, protecting users) and the user's rights to freedom of expression and choice. This balance is often debated in terms of "neutral" versus "curated" platforms, with many arguing for some level of neutrality to respect user autonomy.

The right to choose in the context of social media algorithms touches on fundamental freedoms of expression and information access. While current legal frameworks provide some protection, the specifics of how these rights apply to digital algorithms are still being shaped by ongoing legal debates and public discourse. The argument that users should have unfettered access to content they've opted into challenges the traditional business model of many platforms, suggesting a potential need for new legal or regulatory frameworks to ensure these rights are respected in the digital age.

Civil Rights and Access to Information:

Over View

Civil Rights Perspective: Civil rights extend beyond racial or gender equality to include broader rights to information access, especially when this information pertains to public discourse or education. If algorithms disproportionately affect certain content, it could be argued that this is a form of digital discrimination, impacting your civil right to partake in the 'public square' of social media.

Privacy and Personal Autonomy: The right to choose what content you consume can also be framed as an extension of privacy rights. When algorithms override your explicit selections or curate your feed in unforeseen ways, this could be seen as an infringement on your autonomy over your digital environment.

In Depth

Civil rights in the context of access to information extend beyond traditional protections against discrimination based on race, gender, or religion, encompassing broader principles of equality and liberty in accessing knowledge and engaging in public discourse. Here's an expanded discussion:

1. Civil Rights Framework:

Equality in Information Access: Civil rights inherently include the notion that all individuals should have equal access to opportunities, services, and information. In the digital era, this translates to an equitable access to the information ecosystem, where algorithms do not arbitrarily limit visibility based on criteria not aligned with user choice.

Freedom from Discrimination: If algorithms systematically suppress or elevate content based on the nature of the information (e.g., political views, cultural expression), this might constitute a form of digital discrimination, potentially violating civil rights by creating an echo chamber or selectively silencing voices.

2. Legal and Theoretical Basis:

The Civil Rights Act: While primarily focused on discrimination in employment, public accommodations, and education, the underlying principles could be extended to argue for non-discriminatory access to information.

Right to Information: In the U.S., there isn't a specific federal "right to information" in civil rights law, but this concept is well-established in international human rights law, like Article 19 of the Universal Declaration of Human Rights, which includes freedom to "seek, receive and impart information and ideas through any media."

Public Interest and Civic Engagement: Access to information is vital for an informed citizenry, which is a cornerstone of democratic societies. When algorithms interfere with this access, they might infringe upon the civil right to participate in public life fully.

3. Practical Implications:

Algorithmic Transparency and Accountability: There's a growing call for algorithms to be transparent, not just to prevent discrimination but to ensure users can understand why certain content is being shown or hidden. This transparency is crucial for ensuring civil rights are not undermined by opaque systems.

Regulatory Actions - Court Challenges: While direct cases on algorithmic discrimination in social media are sparse, broader lawsuits against tech companies for discrimination in other areas (like hiring practices or ad targeting) could set precedents. Cases like Pension Trust Fund for Operating Engineers v. Meta Platforms, Inc. challenge algorithmic decision-making in ad placements based on protected characteristics.

Access to information is increasingly recognized as a civil right, especially in the digital age where information shapes opinions, policies, and even elections. The argument here is that algorithms on social media should not act as gatekeepers in a way that undermines equal access or discriminates against certain types of content or users. This perspective calls for a reevaluation of how tech platforms operate to ensure they align with civil rights principles, potentially through new regulatory frameworks or reinterpretations of existing laws. However, this is an area where law, technology, and ethics intersect, leading to complex debates about where rights end and platform discretion begins.

Challenges and Counterarguments

Overview

Private Entities' Rights: Social media companies are private entities with their own First Amendment rights to decide what content they promote or demote on their platforms. This was a significant point in the NetChoice cases, where the platforms argued their actions were covered under editorial discretion. The Supreme Court has historically protected this discretion, suggesting that platforms might not be legally obliged to show all content equally.

Commercial Interest vs. Public Interest: Platforms argue that their algorithms serve to enhance user experience or protect from harmful content, aligning with business interests. However, this commercial interest might clash with the public or civil interest in accessing all forms of information.

In Depth

When arguing that social media algorithms that limit the visibility of content you follow infringe on your rights, several significant challenges and counterarguments arise, primarily revolving around the nature of private companies, the First Amendment, and practical considerations in platform management. Here's an in-depth look:

1. Private Entities' Rights:

Editorial Discretion: Social media platforms are often likened to publishers or broadcasters, which have traditionally enjoyed First Amendment protections for choosing what content to disseminate. The Supreme Court has long upheld that private entities have the right to control content on their property or platform, as seen in cases like Miami Herald Publishing Co. v. Tornillo (1974), where the Court protected newspapers from government mandates on content inclusion.

Commercial Interest: Platforms might counter that their algorithms are designed to improve user experience, increase engagement, or protect against harmful content like misinformation or hate speech. These decisions are seen as business strategies rather than violations of civil rights.

2. First Amendment Limitations:

Government vs. Private Action: The First Amendment restricts government action, not private companies. Thus, unless there's state action involved (e.g., government compelling or restricting platform actions), private platforms can typically manage content as they see fit.

3. User Agreement and Consent:

Terms of Service: Users often agree to terms of service where platforms reserve the right to manage content. This consent might be argued to preempt claims of rights violations since users agree to algorithmic curation by using the service.

4. Practical and Operational Concerns:

Content Moderation at Scale: With billions of pieces of content posted daily, algorithms are necessary for moderation. The counterargument is that without algorithms, platforms would be overwhelmed, leading to a worse user experience or an inability to moderate harmful content at all.

Misinformation and Harm: Platforms often justify algorithmic choices by arguing they protect users from harmful content. This includes misinformation, which could affect public health or democratic processes, thereby suggesting a public interest in some level of content control.

5. Legal and Regulatory Uncertainty:

Lack of Precedent: There's limited case law specifically addressing algorithmic content curation on private platforms in the context of civil rights or freedom of expression. This legal uncertainty makes it challenging to assert rights violations conclusively.

Section 230: This law shields platforms from liability for user-generated content but also complicates arguments for user rights since platforms are not legally required to host or promote all content equally.

6. Potential for Abuse:

Arguing for More Rights: If platforms were legally required to show all content users follow without algorithmic interference, this could lead to abuse by bad actors flooding platforms with spam, hate speech, or misinformation, under the guise of users' rights to access.

These challenges and counterarguments highlight the complexity of applying traditional notions of civil and constitutional rights to modern digital platforms. They underscore the tension between user autonomy, platform rights, and the practical necessities of managing vast digital ecosystems. The debate is further complicated by the rapid evolution of technology, which often outpaces legal frameworks. Thus, any argument for rights in this context must navigate these significant hurdles, potentially requiring new legal theories, regulations, or societal agreements on how digital spaces should function.

Conclusion:

While there is no direct case law or statute that explicitly states social media algorithms infringe on civil or constitutional rights in this manner, the argument can be made based on interpretations of existing rights and precedents. The crux of the argument would be that your right to choose what content you see, especially content you've explicitly followed, should not be curtailed by algorithmic decisions that prioritize reach or commercial interests over user autonomy. However, this would likely be a contentious legal battle, balancing individual rights against the operational freedoms of private companies.

This argument remains theoretical until further legal challenges specifically address this aspect of social media behavior. Currently, the legal landscape is evolving, with courts and legislators continuously grappling with how to apply traditional rights in the digital age.

Emeritus Council www.EmeritusCouncil.org