Between a TikTok and a Hard Place: Products Liability, Section 230, and the First Amendment
With the 3rd U.S. Circuit Court of Appeals’ recent decision in Anderson v. TikTok, it’s time to revisit the interplay between the First Amendment’s right to editorial discretion, Section 230 immunity, and children’s online safety in the context of algorithms.
As has been noted many times, the use of algorithmic recommendations is ubiquitous online. And the potential harms to children receiving bad recommendations is significant, as well, as the underlying facts of the TikTok case show. But there are also countervailing speech and consumer-welfare concerns that arise if algorithmic recommendations are not protected under the law.
Ironically, insofar as the 3rd Circuit is right about algorithmic recommendations constituting first-party speech (and thus not receiving immunity under Section 230), this could mean that online platforms that use algorithmic recommendations have a strong First Amendment defense against products-liability claims.