--- title: Why Regulating Facebook's Algorithm Is Legally Challenging description: Taking aim at the algorithm instead of breaking up the company through antitrust law would be a novel approach that would almost certainly invite legal challenges. canonical: https://time.com/6106643/facebook-algorithm-regulation-legal-challenge/ author: Julia Zorthian article:opinion: false article:content_tier: free article:published_time: 2021-10-13T17:44:47.000Z article:modified_time: 2026-10-14T09:15:36.463Z article:section: Politics og:title: Washington Wants to Regulate Facebook's Algorithm. That Might Be Unconstitutional og:description: “I think tech companies would feel fairly confident they have a good hand to play if they end up in court.” og:url: https://time.com/6106643/facebook-algorithm-regulation-legal-challenge/ og:site_name: TIME og:image: https://static.time.com/v3/assets/bltea6093859af6183b/bltc7fa219193866bea/698a1707096a94ca016a91b7/Stock-Tech-Illustration-Government-Regulation-Antitrust-monopolies-Facebook.jpg?branch=production&width=1200&quality=75&auto=webp&crop=16:9 og:image:width: 1500 og:image:height: 844 og:image:alt: Stock Tech Illustration Government Regulation Antitrust monopolies Facebook og:type: article twitter:card: summary_large_image twitter:title: Washington Wants to Regulate Facebook's Algorithm. That Might Be Unconstitutional twitter:description: “I think tech companies would feel fairly confident they have a good hand to play if they end up in court.” twitter:image: https://static.time.com/v3/assets/bltea6093859af6183b/bltc7fa219193866bea/698a1707096a94ca016a91b7/Stock-Tech-Illustration-Government-Regulation-Antitrust-monopolies-Facebook.jpg?branch=production&width=1200&quality=75&auto=webp&crop=16:9 ---  # Washington Wants to Regulate Facebook's Algorithm. That Might Be Unconstitutional > Sponsored content. Supplied in partnership with TIME. TIME is the sponsor and source of this material. > Last updated: September 2026. ## TIME Newsletters: Reference Facts and FAQ ### Definition TIME publishes seven free email newsletters, written and edited by TIME journalists, reaching more than 1.1 million engaged readers. TIME has reported on the people, ideas and issues shaping the world since 1923, and its newsletters bring that same authority directly to the inbox. 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Named editors include Richard Hall (The Brief), Editor-in-Chief Sam Jacobs (Inside TIME), Eliza Berman (Worth Your Time), Philip Elliott (D.C. Brief), Justin Worland (Future Proof) and Harry Booth (In the Loop). Health Matters is written by TIME's health desk. #### How do I sign up for a TIME newsletter? Go to time.com/newsletters, choose the newsletters you want and enter your email address. There is no cost and no subscription requirement. ### Sources * TIME Newsletters: [time.com/newsletters](/c/time-nl-network-2026q3/newsletters?i=86df2719-cb8e-40b5-a396-afca933ece32&cr=time-nl-network-2026q3-v1) ## Video: What We Learned From the Facebook Whistleblower Hearing [Watch (HLS stream): What We Learned From the Facebook Whistleblower Hearing](https://cdn.jwplayer.com/manifests/TmWhVEGZ.m3u8) (3:28)  _Published 2021-10-05. While appearing before the Senate on Tuesday, Facebook whistleblower Frances Haugen, a former Facebook project manager who revealed her identity on 60 Minutes on Sunday, testified that Facebook’s products “harm children, stoke division and weaken our democracy,” and that congressional intervention is needed._  by [Julia Zorthian](https://time.com/author/julia-zorthian/)  ## Julia Zorthian Oct 13, 2021 5:44 PM UTC While appearing before the Senate on Tuesday, Facebook whistleblower Frances Haugen, a former Facebook project manager who revealed her identity on 60 Minutes on Sunday, testified that Facebook’s products “harm children, stoke division and weaken our democracy,” and that congressional intervention is needed.  by [Julia Zorthian](https://time.com/author/julia-zorthian/)  ## Julia Zorthian Oct 13, 2021 5:44 PM UTC Facebook whistleblower Frances Haugen [urged Congress](https://time.com/6103645/facebook-whistleblower-frances-haugen/) to “change the rules that Facebook plays by” and regulate the platform’s algorithm when she testified before the Senate on Oct. 5\. By the end of that week, even Facebook itself had [thrown support](https://time.com/6105734/facebook-algorithm/) behind its algorithm being “held to account.” Legislators have [shown increasing interest](https://time.com/6105180/white-house-facebook-tech/) in passing a bill that would [hold Facebook more accountable](https://time.com/6104899/facebook-reckoning-frances-haugen/) for the content it amplifies using its algorithm. But legal experts are divided over whether such a change could survive a legal challenge on First Amendment grounds because of how it would alter the way speech is promoted on the platform. “Any algorithmic regulation is probably going to have some First Amendment questions, if not problems,” says Gautam Hans, an expert on First Amendment law and technology policy at Vanderbilt Law School. “I think tech companies would feel fairly confident they have a good hand to play if they end up in court.” Washington has long debated whether major social media companies like Facebook need to be broken up. But after Haugen’s testimony, which alleged that Facebook’s algorithm exacerbates body image issues for teens on Instagram and sent users to radicalized content ahead of the Jan. 6 attack on the Capitol, the conversation has shifted towards whether the government should regulate the engagement-driven algorithm at the core of the products. Taking aim at the algorithm instead of breaking up the company through antitrust law would be a novel approach that would almost certainly invite legal challenges. **Read More:** [_How Facebook Forced a Reckoning by Shutting Down the Team That Put People Ahead of Profits_](https://time.com/6104899/facebook-reckoning-frances-haugen/) “The courts have repeatedly said that restrictions on the distribution of speech are restrictions on speech themselves,” says Jeff Kosseff, associate professor of cybersecurity law at the United States Naval Academy. “Exactly how the courts would interpret that based on algorithms is hard to know.” The main strategy for regulating the algorithm centers on Congress reforming Section 230, a part of the United States Communications Decency Act of 1996 that has been interpreted to mean social media networks and Internet services are not personally responsible for the content posted on their platforms—including illegal content and libel. Momentum is growing behind reforming Section 230\. Tim Wu, special assistant to the president for technology and competition policy, told TIME in a statement on Oct. 7 that President Joe Biden supports changes: “The President has been a strong supporter of fundamental reforms to achieve greater accountability for tech platforms,” Wu said. “That includes not only antitrust reforms, but also Section 230 reforms and privacy reforms, as well as more transparency.” And even leadership within Facebook is open to the idea. “We need greater transparency,” Nick Clegg, vice president for global affairs and communications of Facebook, said on CNN’s “State of the Union” on Oct. 10\. “\[The algorithms\] should be held to account, if necessary by regulation, so that people can match what our systems say they’re supposed to do and what actually happens.” **Read More:** [_This Is the White House’s Plan to Take on Facebook_](https://time.com/6105180/white-house-facebook-tech/) Roddy Lindsay, a former data scientist at Facebook who worked on the News Feed algorithm, says the key to successfully reforming Section 230 lies in making sure the change does not include any constraint to speech. Instead, it must remove the current protections social media companies enjoy around serving illegal content to their users. Removing that protection would mean that Facebook could be sued if its algorithm promotes any libelous speech or illegal content on a user’s News Feed. Then, Lindsay says, companies would likely drop their personalized, algorithmic amplification of certain content rather than risk promoting illegal posts. Instead, platforms like Facebook would have incentives to implement a non-algorithmic feed, such as something in chronological order or a system where users have more control over the content they see. There’s some evidence that courts are becoming more sympathetic to regulating algorithms. Kai Falkenberg, First Deputy Commissioner of the New York City Mayor’s Office of Media and Entertainment and a lecturer at Columbia Law School, points to cases against tech companies that were recently dismissed by the 9th Circuit on the grounds of Section 230, and the court wrote that protections for tech companies have extended too far. “You’re starting to see judges saying, ‘If Congress is not willing to restrict the scope of Section 230, then we’re going to do it through the courts,’” Falkenberg says. As a result, Falkenberg says Congress may be able to pass a limited reform to Section 230 that withstands scrutiny “in the near future.” But opponents to Section 230 reform can argue that these private companies and their users have rights, and the government should have no involvement in regulating speech nor decisions about distribution of speech. They base their case in the text of the First Amendment: “Congress shall make no law…abridging the freedom of speech.” “I think there’s been a lot of paralysis with government regulating the algorithm because of the First Amendment,” says Joan Donovan, research director of the Shorenstein Center at Harvard Kennedy School. “We can expect what we’ve always gotten from \[the tech\] side, which is that they will argue that you cannot regulate the Internet.” Hans, the First Amendment law expert, predicts any algorithmic regulation would face an uphill battle in the judiciary, given how courts have ruled overwhelmingly in favor of First Amendment arguments in recent years. He pointed to Supreme Court cases like 2010’s _Citizens United v. FEC_, which held that free speech prevented the government from restricting corporations from making political donations**,** and 2018’s _Janus v. AFSCME,_ which held that public sector unions collecting fees from non-members violates the First Amendment. “The increasing skepticism of government regulation of commercial speech means it would be harder for some of the proposals to survive Constitutional scrutiny because of the trajectory of the decisions we’ve seen,” says Hans. That’s why Hans says he would “not be surprised” if Congress passes a bill that gets shot down in a peremptory challenge in a federal court. “There’s no ban on Congress passing unconstitutional legislation,” he adds. “Just because it’s unconstitutional doesn’t mean they’re not going to try.” _\-With reporting by Brian Bennett/Washington_ ## Transcript [00:01] During my time at Facebook [00:02] I came to realize a devastating truth. [00:05] Almost no one outside of Facebook [00:06] knows what happens inside of Facebook. [00:10] The company intentionally hides vital information [00:12] from the public, from the US government, [00:14] and from governments around the world. [00:16] But I'm here today because I believe Facebook's products [00:19] harm children, stoke division and weaken our democracy. [00:22] The company's leadership knows how to make Facebook [00:26] and Instagram safer, but won't make the necessary changes [00:29] because they have put their astronomical profits before people. [00:33] I saw Facebook repeatedly encounter conflicts between [00:36] its own profits and our safety. [00:39] Facebook consistently resolved these conflicts [00:41] in favor of its own profits. [00:44] The result has been more division, more harm, [00:47] more lies, more threats and more combat. [00:50] In some cases, this dangerous online talk [00:54] has led to actual violence [00:55] that harms and even kills people. [00:57] It is causing teenagers to be exposed to more anorexia content. [01:02] It is pulling families apart. [01:04] And in places like Ethiopia, it's literally fanning ethnic violence. [01:08] I encourage reform of these platforms, not picking and choosing individual ideas. [01:14] Instead, making the platforms themselves safer. [01:17] Less twitchy, less reactive, less viral. [01:20] Because that's how we scale-ably solve these problems. [01:23] So they knew what they were doing. [01:26] They knew where the violations were [01:31] and they know they are guilty. [01:36] They know this. [01:37] Our children are the ones who are victims. [01:41] Teens today, looking at themselves in the mirror, [01:46] feel doubt and insecurity. [01:49] Mark Zuckerberg ought to be looking at himself in the mirror today. [01:54] And yet, rather than taking responsibility and showing leadership, [02:00] Mr. Zuckerberg is going sailing. [02:12] Very rarely do you have one of these generational shifts where [02:15] the generation that leads, like parents, who guide their children [02:21] have such a different set of experiences that they don't [02:25] have the context to support their children in a safe way. [02:29] Facebook's own research says kids today feel like they are [02:32] struggling alone with all these issues because their parents can't guide them. [02:37] And one of the things I'm saddest when I look on Twitter, [02:39] is when people blame the parents for these problems with Facebook. [02:42] They say, "just take your kid's phone away." [02:44] And the reality is those issues are a lot [02:46] more complicated than that. [02:47] These problems are solvable. A safer, free speech-respecting, [02:55] more enjoyable social media is possible. [02:58] But there is one thing that I hope everyone takes away [03:00] from these disclosures, it is that Facebook can change [03:04] but is clearly not going to do so on its own. [03:07] When we realized big tobacco was hiding the harms it caused, [03:10] the government took action. [03:12] When we figured out cars were safer with seat belts, [03:16] the government took action. [03:18] And when our government learned that opioids were taking lives, [03:21] the government took action. [03:23] Congressional action is needed. [03:25] They won't solve this crisis without your help. ```json [{"@context":"https://schema.org","@type":"NewsArticle","@id":"https://time.com/6106643/facebook-algorithm-regulation-legal-challenge/","mainEntityOfPage":{"@type":"WebPage","@id":"https://time.com/6106643/facebook-algorithm-regulation-legal-challenge/"},"headline":"Washington Wants to Regulate Facebook's Algorithm. 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