Straining (Analogies) to Make Sense of the First Amendment in Cyberspace

David Pozen is a professor at Columbia Law School and inaugural visiting scholar at the Knight Institute.

In trying to figure out how the First Amendment applies to internet search engines and social media platforms, courts and commentators have turned to somewhat anachronistic analogies. Google’s search engine compiles and transmits content supplied by third parties — and to this extent, many have pointed out, it looks like a traditional publisher. On the other hand, Google’s search engine results do not express critical curatorial judgments by Google or indicate Google’s support for their content in the manner we generally expect of publishers. Facebook’s Trending News feature ranks and disseminates stories based on algorithms created by humans — and in this sense, it looks like a newspaper editor. On the other hand, Facebook takes pains to minimize the influence of human “biases” on these algorithms and to portray itself as a neutral conduit for information.

For these and other reasons, as Heather Whitney’s new paper explains, the analogies that get drawn in these contexts are imperfect. There are significant dissimilarities as well as similarities between the things being compared. There are, moreover, other analogies that might be privileged instead: Why not compare Google and Facebook to a shopping mall, or to a public trustee, or to a company town? And still more fundamentally, there is an underlying question of whether and why the First Amendment logic of prior cases should apply to such technologies. This is a question that analogies in themselves cannot answer.

Whitney’s paper, which is being published today as the third installment in the Knight First Amendment Institute’s Emerging Threats series, deconstructs the use of the “editorial analogy,” and of analogical reasoning more generally, in First Amendment litigation and advocacy concerning some of our most powerful tech companies. Whitney does not seek to advance any particular interpretation of Google, Facebook, and the like. Rather, through careful conceptual and empirical analysis, she seeks to expose the pitfalls of relying too heavily on analogies in this area of law and thereby to shift ongoing First Amendment debates onto more solid normative ground.

Three response pieces engage with Whitney’s paper in very different ways. Eric Goldman defends the validity of the editorial analogy for Google and Facebook, but also maintains that their First Amendment rights do not depend on it to any meaningful degree. Whitney’s critique of this analogy, Goldman worries, may create space for overly aggressive or counterproductive forms of regulation.

Genevieve Lakier, in contrast, agrees with Whitney that courts have been clumsy in comparing search engines to newspapers; cable providers, Lakier suggests, are closer counterparts to the former in the contemporary public sphere. Yet Lakier disagrees with the notion that courts should therefore move away from analogies altogether. When done well, Lakier submits, analogical reasoning plays an indispensable role in guiding and constraining judicial discretion.

Finally, Frank Pasquale hails Whitney’s intervention and asks how it might be pushed further. Underpinning both First Amendment jurisprudence and public policy on large internet intermediaries, Pasquale argues, should be the principle that “free speech protections are primarily for people, and only secondarily (if at all) for software, algorithms, artificial intelligence, and platforms.” Whitney’s paper concludes by urging us to stop fixating on analogies and start paying more explicit attention to the deep normative issues at stake in our debates over search engine results and social media designs. Pasquale shows what it looks like to do just that.