Stuart Minor Benjamin in the University of Pennsylvania Law Review:
More and more of our activity involves not merely the transmission of bits, but the transmission of bits according to algorithms and protocols created by humans and implemented by machines. Messages travel over the Internet because of transmission protocols, coding decisions determine the look and feel of websites, and algorithms determine which links, messages, or stories rise to the top of search engine results and web aggregators’ webpages. Most webpages have automated components, as do most online articles and all video games. Are these algorithm-based outputs “speech” for purposes of the First Amendment? That is, does the Free Speech Clause of the First Amendment apply to government regulation of these or other algorithm based changes to bits?