Home > Journals > WMLR > Vol. 64 (2022-2023) > Iss. 2 (2022)
William & Mary Law Review
Incitement and Social Media-Algorithmic Speech: Redefining Brandenburg for a Different Kind of Speech
Assuming that these scholars are correct and that social media algorithms’ decisions qualify as speech to which the First Amendment applies (social media-algorithmic speech), this Note proposes a legal solution to the increasing problem of violence stemming from social media. This Note asserts that the incitement standard for social media-algorithmic speech should be less stringent because the Brandenburg standard does not apply well to new media, social media-algorithmic speech is much more likely than other speech to actually produce lawless action, and the traditional First Amendment justifications do not apply to social media algorithms’ speech. Therefore, the Supreme Court should tweak the incitement standard for social media-algorithmic speech by altering Brandenburg’s intent and imminence requirements.
Part I of this Note provides relevant history and background about the rationales behind and values of free speech and the current incitement standard. Part II presents the problem at hand, which is that social media-algorithmic speech is uniquely likely to produce lawless action while the Brandenburg standard does not and cannot address this problem sufficiently. Part III discusses a solution to this problem, arguing that the Court should modify the Brandenburg standard as applied to social media-algorithmic speech by altering the intent requirement and relaxing or removing the imminence requirement. Part III also addresses potential counterarguments.
This abstract has been taken from the author's introduction.