Publication Date
11-16-2025
Abstract
The Supreme Court’s 2024 decision in Moody v. NetChoice, LLC left a critical question unanswered: when do algorithmic outputs on social media platforms, such as recommended posts and videos, constitute the platform’s protected speech under the First Amendment? This Note contends that courts and litigants should borrow from the First Amendment’s speech-promoting partner, copyright law, and its authorship framework when answering that question. Copyright doctrine has already begun to grapple with how much human control is required over expressive outputs generated with the aid of technology, including AI, in order for an author to receive copyright protection over those outputs. Applying copyright law’s approach in the First Amendment context can help courts distinguish between algorithmic uses that reflect genuine human authorship—and thus merit protection—and those that do not. Importantly, following copyright’s legal framework could prevent courts from accidentally granting protection to harmful algorithmic uses and shielding such uses from necessary government regulation.
Recommended Citation
Giselle Goad,
Control as a Constitutional Threshold: Moody v. Netchoice and the Case for Human Authorship,
120
Nw. U. L. Rev.
757
(2025).
https://scholarlycommons.law.northwestern.edu/nulr/vol120/iss3/6
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Computer Law Commons, Constitutional Law Commons, Courts Commons, Entertainment, Arts, and Sports Law Commons, First Amendment Commons, Intellectual Property Law Commons, Internet Law Commons, Jurisprudence Commons, Law and Politics Commons, Law and Society Commons, Public Law and Legal Theory Commons, Supreme Court of the United States Commons