Conference Agenda

Introduction

Although the FCC lacks direct authority over internet-based services like Netflix and YouTube, Congress retains the power to promote competition, localism, and viewpoint diversity in streaming platforms, just as it did for cable television in 1992. When Congress passed the 1984 and 1992 Cable Acts, it mandated rules to promote competition, localism, and viewpoint diversity, including must-carry provisions, vertical integration limits, and program access requirements. Congress worried about cable operators’ economic power and the marginalization of local broadcast voices. In Turner Broadcasting System v. FCC (1994, 1997), the Supreme Court upheld must-carry provisions, holding that they served important governmental interests in preserving local broadcast and promoting diversity of viewpoints.

Today, similar concerns arise as most Americans shift to Over-The-Top (OTT) services and local broadcast loses competitiveness for advertising revenue. Policymakers may again seek to protect local and diverse viewpoints in streaming platforms. Moreover, ownership concentration and mergers in the OTT market echo the cable consolidation concerns that motivated the 1992 Cable Act. These parallels suggest that Congress may pursue similar diversity policies for streaming platforms. Furthermore, as algorithms shape what audiences can see (i.e., exposure diversity), Congress may pursue algorithmic accountability for promoting diversity. However, two foundational legal questions must first be addressed:

RQ 1: Do algorithmic recommendation systems constitute protected speech under the First Amendment, and if so, to what extent can the First Amendment protection be applied to them?

RQ 2: Can platforms using such algorithms be held liable for their recommendations under Section 230 of the Communications Decency Act of 1996 (CDA)?

Before conducting analysis, this study first conducts a comprehensive literature review on the First Amendment challenge across different technologies, including broadcast, print, cable TV, and the internet. Detailed court cases with orders will be provided in the full paper.

First Amendment Protection by the Media

Broadcasting

Broadcasters received the narrowest First Amendment protection because of spectrum scarcity. Since radio frequencies are a limited public resource, the FCC determined which broadcast license applicant would make the best use of the spectrum in light of public interest. Under the public trustee approach, the commission created various programming regulations to ensure broadcasters met the public interest standard, including programming requirements (e.g., Blue Book) and content regulation (e.g., Fairness Doctrine).

Cable

Although the scarcity rationale was not applied to cable TV, Congress imposed regulations aiming to serve the public interest, such as the must-carry provision. The Turner cases are milestones in cable regulation that did not extend Red Lion to cable. The main regulatory discussion then shifted to whether the regulation was content-based, which would receive strict scrutiny, or content-neutral, which would receive intermediate scrutiny.

Print

Compared to broadcast and cable, print media have long received greater protection. In Miami Herald Publishing Co. v. Tornillo (1974), the Supreme Court did not extend spectrum scarcity to the newspaper industry. The Court overturned the state supreme court decision, holding that Florida’s “right to reply” statute was unconstitutional.

The Internet, CDA, and Section 230

Congress enacted the Communications Decency Act of 1996 (CDA), which imposed penalties for transmitting obscene or indecent communications when the sender knew the recipient was under the age of 18. In Reno v. ACLU (1997), the Supreme Court concluded that the CDA is unconstitutional and that there is no scarcity on the internet, noting “the Internet can hardly be considered a ‘scarce’ expressive commodity.” As a result, the internet receives the highest level of First Amendment protection.

In addition, online platforms have immunity from liability for third-party content and for removing content under Section 230(c)(1), which states: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” In Zeran v. America Online (1997), the Fourth Circuit established Section 230’s broad scope, holding that interactive computer services are immune from claims based on third-party content. However, whether this immunity extends to algorithmic recommendations remains contested.

Method

This study conducts a legal analysis of recent cases addressing algorithmic recommendations and Section 230 immunity. Primary cases include Moody v. NetChoice (2024), Anderson v. TikTok (2024), and Patterson v. Meta (2025), supplemented by earlier decisions on search engine recommendations and platform liability. This study also references Zhang et al v. Baidu Inc (2014), Gonzalez v. Google LLC (2023), and Twitter v. Taamneh (2023).