Keywords
Algorithmic Systems, Data-driven Optimization, Corporate Constitutional Rights, Technological Development
Abstract
This Note examines how corporate First Amendment doctrine applies to algorithmic systems that curate commercial information and public discourse across online platforms. Courts have increasingly treated ranking, recommendation, and moderation practices as exercises of protected editorial judgment. At the same time, the Court has justified protection for corporate speech in part by reference to listener-centered interests in access to information and competitive comparison. This Note argues that the interaction between these doctrinal strands and contemporary algorithmic intermediation reveals a structural tension. Data-driven optimization can generate individualized informational environments—what this Note terms “algorithmic cocoons”—in which users encounter content, offers, and prices shaped by inferences drawn from their own past behavior. Through iterative feedback loops, these systems tend to reinforce prior interactions, narrowing the range of information users are likely to encounter in both commercial and public discourse.
By reconstructing the genealogy of corporate constitutional rights and the justificatory strands of corporate speech doctrine, this Note shows that existing doctrine contains the conceptual resources for articulating a distinction between core editorial expression and infrastructural mechanisms of behavioral optimization. Recognizing this distinction clarifies how First Amendment doctrine can accommodate a more granular analysis of algorithmic intermediation without collapsing infrastructural design into protected editorial judgment, while also identifying space for forms of regulation that can operate consistently with the doctrine’s existing commitments.
Recommended Citation
31 Fordham J. Corp. & Fin. L. 745 (2026).
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