Search Engines, Social Media, and the Editorial Analogy

Social media companies are in Congress’s sights. In May 2016, in the wake of allegations that Facebook workers had suppressed pro-conservative viewpoints and links while injecting liberal stories into the newly introduced Trending Topics section, Senator John Thune sent a letter to Mark Zuckerberg demanding, among other things, a copy of the company’s guidelines for choosing Trending Topics, a list of all news stories removed or injected into Trending Topics, and information about what steps the company would take to “hold the responsible individuals accountable.” Facebook complied, with Zuckerberg himself meeting with lawmakers. During the recent hearings before the Senate and House intelligence committees on Russian interference in the 2016 presidential campaign, Senator Dianne Feinstein told the general counsels of Facebook, Google, and Twitter — whose CEOs were conspicuously absent — “You bear this responsibility. You’ve created these platforms. And now they’re being misused. And you have to be the ones to do something about it. Or we will.” Despite intensive lobbying efforts by these companies, both individually and through their collective trade association, legislation imposing new restrictions on how they operate is, “[f]or the first time in years...being discussed seriously in Washington.” As one reporter put it, “In 2008, it was Wall Street bankers. In 2017, tech workers are the world’s villain.” That Bay Area tech companies are having something of a PR crisis is clear. And in the rough and tumble of politics, that these companies would meet with and appease legislators is no great surprise. But if Congress does decide to get tough, how credible and wide-ranging is the regulatory threat, under current First Amendment jurisprudence? 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.