Commercial Clicks: Advertising Algorithms as Commercial Speech

Kerri A. Thompson · 21 Vand. J. Ent. & Tech. 1019

Abstract

Congressional hearings have finally called for the “right regulation” of social media platforms. The First Amendment, however, has shielded internet companies from regulation since the birth of social media. Even if Congress enacts legislation now, internet companies will be able to defend against the “wrong regulation” by claiming the regulation unconstitutionally limits their freedom of speech. This Article uses Facebook’s advertising algorithms as a case study of how Congress can properly regulate Facebook by analyzing the advertising algorithms as commercial speech, which receives less protection under First Amendment jurisprudence. In doing so, Congress can protect the strong public interest in eliminating Facebook’s unregulated ability to indiscriminately sell data based on any category—including “Jew hater” and “Hitler was right,” both actual categories that ProPublica discovered in its investigation of Facebook’s advertising practices in 2017—while maintaining the strong First Amendment protection of internet companies’ freedom of speech. First, this Article discusses the need for the regulation of advertising algorithms that sell data to advertisers. Then, it analyzes whether Facebook’s advertising algorithms can be considered commercial speech under First Amendment case law. It argues that the regulation of Facebook’s advertising algorithms can survive First Amendment scrutiny through the commercial speech doctrine, and it concludes that doing so maintains protection of Facebook as a community while regulating Facebook as commerce.