Cite as: 603 U. S. ____ (2024)
31
ALITO, J., concurring in judgment
No human being could possibly review even a tiny fraction of this gigantic outpouring of speech, and it is therefore
hard to see how any shared message could be discerned.
And even if someone could view all this data and find such
a message, how likely is it that the addition of a small
amount of discordant speech would change the overall message?
Now consider how newspapers and social-media platforms edit content. Newspaper editors are real human beings, and when the Court decided Tornillo (the case that the
majority finds most instructive), editors assigned articles to
particular reporters, and copyeditors went over typescript
with a blue pencil. The platforms, by contrast, play no role
in selecting the billions of texts and videos that users try to
convey to each other. And the vast bulk of the “curation”
and “content moderation” carried out by platforms is not
done by human beings. Instead, algorithms remove a small
fraction of nonconforming posts post hoc and prioritize content based on factors that the platforms have not revealed
and may not even know. After all, many of the biggest platforms are beginning to use AI algorithms to help them moderate content. And when AI algorithms make a decision,
“even the researchers and programmers creating them
don’t really understand why the models they have built
make the decisions they make.”56 Are such decisions
equally expressive as the decisions made by humans?
Should we at least think about this?
Other questions abound. Maybe we should think about
the enormous power exercised by platforms like Facebook
and YouTube as a result of “network effects.” Cf. Ohio v.
——————
about 150,000 words. A typical word consists of 10 to 20 bytes. Therefore, the average issue of the New York Times contains around 3 million
bytes.
56 T. Xu, AI Makes Decisions We Don’t Understand—That’s a Problem, (Jul. 19, 2021), https://builtin.com/artificial-intelligence/ai-rightexplanation.
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