Search engines, social media and the editorial analogy

A snip from the abstract from Heather M. Whitney’s Search Engines, Social Media, and the Editorial Analogy (Mar. 1, 2018):

Some prominent commentators claim that Facebook is analogous to a newspaper and that its handling of a feature like Trending Topics is analogous to a newspaper’s editorial choices. As a result, these commentators find congressional scrutiny of such matters to be constitutionally problematic. Moreover, the editorial analogy has been a remarkably effective shield for these tech companies in litigation. In a series of lower court cases, Google and others have argued that their decisions concerning their platforms — for example, what sites to list (or delist) and in what order, who can buy ads and where to place them, and what users to block or permanently ban — are analogous to the editorial decisions of publishers. And like editorial decisions, they argue, these decisions are protected “speech” under the First Amendment. While mostly wielded against small-fry, often pro se plaintiffs, courts have tended to accept this analogy wholesale.

Large consequences hinge on whether the various choices companies like Facebook and Google make are indeed analogous to editorial “speech.” The answer will partly determine whether and how the state can respond to current challenges ranging from the proliferation of fake news to high levels of market concentration to the lack of ad transparency. Furthermore, algorithmic discrimination and the discrimination facilitated by these platforms’ structures affect people’s lives today and no doubt will continue to do so. But if these algorithms and outputs are analogous to the decisions the New York Times makes on what to publish, then attempts to extend antidiscrimination laws to deal with such discrimination will face an onslaught of potentially insuperable constitutional challenges. In short, these companies’ deployment of the editorial analogy in the First Amendment context poses a major hurdle to government intervention.

Whether, or to what extent, the editorial analogy should work as a shield against looming legislation and litigation for companies like Facebook and Google is something this historical moment demands we carefully consider. My primary aim in this paper is to do just that. I will engage critically with, and ultimately raise questions about, the near-automatic application of the editorial analogy. The core takeaways are these: (1) we should be cognizant of the inherent limitations of analogical reasoning generally and of the editorial analogy specifically; (2) whether these companies’ various outputs should receive coverage as First Amendment “speech” is far from clear, both descriptively and normatively; (3) the proposition that regulations compelling these companies to add content (disclaimers, links to competitors, and so on) compel the companies to speak is also far from clear; and, finally and most crucially, (4) given the limits of analogical reasoning, our future debates about First Amendment coverage should focus less on analogy and more on what actually matters — the normative commitments that undergird free speech theory and how our choices either help or hinder their manifestations.

Interesting. — Joe

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