디지털플랫폼의 콘텐츠 관리와 표현의 자유 — 미국 디지털플랫폼의 알고리즘 기반 콘텐츠 관리 논쟁을 중심으로 —

Recent social media regulation laws in Texas and Florida, coupled with the subsequent U.S. Supreme Court ruling in Moody v. NetChoice, LLC, have sparked a pivotal constitutional debate regarding whether digital platforms' content moderation practices constitute “editorial discretion” protected under the First Amendment. The crux of this controversy centers on whether algorithmic content selection and curation can be equated with traditional media's editorial functions, and whether such automated processes produce constitutionally protected “speech”. This study critically examines this debate, contending that for algorithm-based content moderation to merit First Amendment protection, platforms must satisfy two fundamental constitutional requirements. First, algorithmic determinations must constitute genuine “human decisions.” The First Amendment presupposes conscious, intentional expression by identifiable speakers. Consequently, algorithms must demonstrably embody their designers' editorial objectives and maintain sufficient transparency to enable meaningful human oversight and intervention. The “black-box” nature of contemporary machine learning systems — whose outputs remain unpredictable and uncontrollable even to their creators — presents a fundamental challenge to characterizing such automated decisions as the platform's deliberate expression. Second, algorithmic processes must constitute authentic “editorial discretion.” This requires creating a “coherent expressive product” that reflects the platform's editorial judgment and communicative intent, transcending mere mechanical aggregation of user-generated content. Platforms can legitimately claim editorial protection only when they actively curate spaces that advance specific values, perspectives, or communicative purposes. The incidental compilation of vast quantities of disparate content, without more, fails to establish the editorial coherence necessary for constitutional protection. The Supreme Court's recognition that content moderation involves protected editorial activity represents a significant development in First Amendment jurisprudence, yet this protection is not absolute or unconditional. Platforms seeking constitutional shelter must demonstrate that their content moderation reflects genuine editorial choices rather than purely algorithmic processing. In conclusion, digital platforms can claim First Amendment protection for content moderation only when they function as “active editorial entities” exercising meaningful control over their expressive output, rather than operating as neutral technical conduits. This framework provides essential guidance for both preserving digital-age speech freedoms and developing rational regulatory frameworks that prevent platforms from exploiting constitutional protections to evade legitimate public oversight. Such a nuanced approach ensures that First Amendment protections extend to genuine editorial expression while maintaining space for appropriate regulatory intervention in the digital public sphere.