Search Engines and Free Speech Coverage

Abstract

In this Essay we investigate whether new modes of online communication ought to be covered by free speech principles. The types of communications we’re interested in are the outputs of programs that synthesize, organize, and transmit third-party communications to users. Search engine results are the most familiar and ubiquitous example of this. Another notable example is Trending News on Facebook. While we are interested in the immediate policy implications of this classificatory question, this Essay also puts forth a broader methodological critique. More specifically, we critique the analogical reasoning – which likens search engine results to editorial publications – that has dominated First Amendment case law and legal scholarship around this issue to date. We argue that this analogy is unpersuasive on its own terms, and that proponents of this analogy have failed to properly engage with rival analogical interpretations of the function of search engines that favor the opposite conclusion (i.e., that search engine results should not receive free speech coverage). We argue that this is indicative of shortcomings with analogical methods in debates over free speech coverage more generally. When important and novel forms of communicative practice are being considered, courts should not use tenuous analogical inferences to extend First Amendment protections beyond their established scope. Here we present, for the first time in this literature, a taxonomy of different types of analogical reasoning, in order to offer a more precise account of the specific forms of analogical reasoning that we’re objecting to. We then explain the comparative merits of addressing question of coverage in a way that primarily relies on reference to three normative theories of free speech: democratic participation, epistemic, and thinker-based. We argue that under each of these theories – contrary to the currently prevailing view in both the cases and existing scholarship – only a subset of search engine results and similar communication should in fact be afforded free speech coverage.

Note: This draft is not yet updated to include Packingham v. North Carolina.

Keywords: First Amendment, search engines, analogical reasoning, legal theory