Freedom of Expression Scholars Conference at Yale: Search Engines and Free Speech

Heather M. Whitney & Robert Mark Simpson: Search Engines
and Free Speech Coverage
Discussant: Heidi Kitrosser: Are search engine results covered by the 1A? Larger question of how
we decide what’s salient is part of the paper. 
Survey relevant 1A case law about algorithms & results.  Of the handful of cases to be decided, courts
basically have accepted a rather simple analogy between the algorithms that pop
out results and the type of editorial judgments at issue in cases like Tornillo and Hurley.  Issue has mainly
come up in unevenly matched cases—pro se or poorly resourced litigants against
tech giants.
There’s a long temporal and intellectual chain between the
initial creation of an algorithm and the spitting out of results—a disconnect
in a way that makes it not at all clear that the programmers are the “authors”
of the output in the way one puts together a parade/editorial page. Some
algorithmically mediated content might be analogous—for example, Stuart
Benjamin says, a giant digital billboard calculating the national debt; the
calculation is algorithmic but the message overall is expression.  It’s just not always the case that
algorithmic results are the product of editorial judgment. Demonstrates
weakness of analogical reasoning generally in determining 1A coverage. Point is
to get at the core Q: what are the values, reasons, normative concerns that
lead us to accord special protection to speech (or other things).
Speech/conduct distinction doesn’t resolve the problem; go
back to free speech theory for coverage of new tech outputs.  Pluralistic/democratic participation values:
Consumer protection laws and antitrust laws might appropriately cover
algorithms; algorithms themselves may repress speech if they submerge certain
Reflections: push them to consider more of a defense of
democratic participation as a focus, and/or run through other theories and
explain how those would work.  Are you
applying theory to determine protection,
or to determine coverage?  If you use your theory to determine
protection, then aren’t you collapsing coverage and protection?
Simpson: More difficult to make decisions here than the
courts/some of the scholarship would have you believe. There should be no ready
conclusions w/r/t coverage.  Algorithms
are neither inherently dissimilar or inherently similar to editorial judgments.
Whitney: Analogies by themselves aren’t doing the work
because you need to figure out what makes the analogy relevant.  Theory can help figure out if we’re ever
going to have limits on the deregulatory turn. 
That is a view that one can take of the 1A, but then you have given everything 1A protection (or coverage).
Jim Weinstein: Courts have intuitive, unarticulated theories
they use when they analogize; good to bring them to the surface.  You suggest possible fairness doctrine, but
even if something isn’t covered, the justifications themselves can trigger 1A
concerns: chocolate isn’t speech, but if the gov’t wanted to regulate chocolate
because consuming it made people more likely to oppose the gov’t, that would be
a problem. Gov’t intent to avoid an echo chamber online: same Q.   [Note
that this position may imply that federal mortgage insurance is a violation of the
First Amendment; the justifications at least included that being a homeowner
increases people’s involvement in the community, self-regard, and motivation to
work—cf. the more recent discussions of the “ownership society.”]
Deven Desai: if the NYT started to use algorithms to take on
Google News—would it lose protection?  Facebook,
Yelp—is there a search engine difference or not?  TripAdvisor and Yelp v. Google—you can’t get
around Red Lion that easily. If there’s not a scarcity, then people can choose
something else.
Simpson: Algorithms on their own don’t determine anything
about coverage.  Making a claim about how
courts shouldn’t be thinking about algorithms, not about how they should be.
Enrique Armijo: When you accuse Google of inconsistency on
net neutrality. The ISP argument is that they want to reserve the right to
edit; Google’s position is that they edit all the time, so he thinks there’s a
fair difference.  Regulating GM more
easily than Google: but what about Target? 
When I go to Google, I’m looking for speech, but when I go to Target I’m
looking for avocados.  (Hmm. Many times
when I go to Google I’m looking for, well, avocado-colored suits at least.)
Jim Tsetsis: What about the Press Clause?  If we treated it as having a separate
meaning, as the SCt has not, then we wouldn’t have to sweat so hard about the
difference b/t GM and the NYT, and could think better about Google. 
Whitney: Hurley
line is an issue; not traditional Press. Would require quite an intervention
from the SCt; would Hurley come out
differently even if we separated out the press? 
And the search engines would be fine saying that they were like the
press, and only use editorial judgment argument as a backup. The issue is still
analogical: what makes something a “press.”
Robert Corn-Revere: it’s the organization of information, so
what about that isn’t protected by the First Amendment?
Whitney: The outcome might be coverage/protection; there are
coherent accounts that would include search engines, but also coherent accounts
that wouldn’t in certain circumstances. 
We need a course correction or everything becomes speech and there’s nothing
special about a bookstore v. Target.  Result
of very expansive theory: The things that people sell, like search results, are
the result of expressive decisions; if those choices are expressive/organizing
information, then that product is speech—which goes off the rails.
Q: Millian harm principle: w/o the 1A, the constraint is
rational basis, which doesn’t require the harm principle. One way of
understanding the 1A is as demanding something more than the harm principle (a certain kind of harm), or given the
baseline of rational basis you could just demand the harm principle be
satisfied.  Even if credit ratings are
speech, you might have a harm-based justification to override it, in which case
the Q about what justifies regulation of search engines would be based on protection, not just on coverage.  Compare the 4th Amendment context:
analogies the SCt used fairly easily to justify things—video surveillance is
like looking at people—are now at risk of abandonment (cellphone isn’t like
other stuff in your pocket). 
Disanalogies can also be recognized—leap in scope.
Whitney: The 4th Amendment comparison is a good
one—resort to principles rather than analogies.
Simpson: true, might be covered but not protected.  For our purposes here, want to remain
agnostic on the result of a protection decision within the scope of covered
speech, because coverage decisions also have important implications for
Balkin: what search engines do more than anything else is
serve democratic competence (Meiklejohn)—Meiklejohnian version of 1A would
clearly lead to coverage for Google, leaving only protection remaining as the
decision.  Many other algorithms would
also pass Meikeljohn’s test for coverage. 
Only an autonomy theory would say that only humans are bearers of
speech, and distinguish between humans and their tools.
Simpson: we don’t think it’s as clear as that.  When I go to a search engine, what I think I’m
seeing is a purely mechanically generated result.  In cases against search engines, the claim is
a consciously gerrymandered result that is not that.  If Meikeljohn’s theory is about members of
the demos having access to information they’d need in order to be
participators, then the claim is that search engines, at least some of the
time, distort exactly that information.
Balkin: Meiklejohn would never have said that b/c info you
get is distorted, info is not protected. You need access so as to make your own
judgments. Lots of information cooks the books. You’d have to argue that search
engines have a different relationship to the public different to everyone else’s:
information fiduciaries, with special duties to the public.  Grimmelmann, search engines as advisors.  Special duty by nature of service = ability
to regulate in public interest; otherwise they’re in the same boat as any other
info providers who cook the books (to mix a metaphor).  If a newspaper gives you a bunch of biased
headlines, Meiklejohn has no problem with that. Only if an entity had a special
duty to the public could it be regulated.
Corn-Revere: You’d have to reverse Tornillo for that.
Whitney: another possible move is new conceptions of
autonomy/libertarian paternalism. Things that distort autonomy should not be unproblematically
Balkin: they don’t try to apply nudges to First Amendment
values.  Imagine a nudge to register all
18 year olds as Democrats.
Whitney: Democratic competence can have multiple meanings:
people cannot always detect falsity/misleadingness. 
Balkin: but then you’re taking out a huge swatch of 1A
Whitney: Accept that, though we are not arguing for that
Simpson: info fiduciary argument is worth pursuing: we’re
trying to do more to theorize the special role that search engines have.
Sandy Baron: Q of responsibility for output in tort law.  Google doesn’t want to be responsible in that sense; can  you distinguish them in 1A
Whitney: It does seem there’s a tension for 1A protection
for antitrust plus §230 protection because it’s not their speech. They’re
neutral intermediary!  100% agree there’s
an issue here. Identifying as a speaker is useful in some cases, harmful in
Q: Facebook isn’t the same as a search engine: trying to be
objective/universal, presenting information as relevant. FB is more of a
community; very different waters for the tech community.
Andrea Matwyshyn: Not everyone would agree w/that. 
Q: but FB will remove hate speech/terrorist content.

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