Manipulation and the First Amendment

Abstract

This Essay draws from ethicists’ insights to explain how manipulation can inflict harms distinct from those imposed by coercion and deception, and to explain why addressing these distinct harms is a government interest sufficiently strong to justify appropriately tailored interventions. More specifically, the key features of manipulation—as defined by ethicists Daniel Susser, Beate Roessler, and Helen Nissenbaum—are a speaker’s hidden efforts to shape listeners’ decision-making that target and exploit those listeners’ vulnerabilities in ways that the targets are not consciously aware of, and in ways that those targets could not easily become aware of if they were to try.

This Essay then explores how these conceptual tools also help us understand when, how, and why government can regulate manipulation consistent with the First Amendment. In commercial settings, more specifically, it proposes that the Court should refine and extend commercial speech doctrine to add “manipulative” commercial speech to the commercial speech it currently treats as entirely unprotected by the First Amendment because it frustrates listeners’ interests. This move tracks the original theoretical justifications of the commercial speech doctrine as steeped in protecting listeners’ First Amendment interests. When we recall that false and misleading commercial speech, as well as commercial speech related to illegal activity, loses its First Amendment protection precisely because it frustrates listeners’ First Amendment interests, we can see that the same can be true of manipulative commercial speech: it frustrates listeners’ interests by seeking to covertly influence those listeners’ choices without their conscious awareness and by targeting and exploiting their vulnerabilities.

Filling this doctrinal lacuna would also help fill enforcement lacunae within current law. Even though existing consumer protection statutes frequently prohibit “unfair” as well as “deceptive” trade practices, to date enforcement efforts have focused almost entirely on allegedly deceptive practices—largely because of the conceptual difficulty in defining and describing illegally “unfair” practices. Here too ethicists give us the conceptual tools to help us understand why manipulation can be regarded as “unfair” to listeners even when it is hard to characterize as deceptive in traditional terms.

This then requires that we have a workable principle for identifying online commercial speech that is manipulative (and thus unprotected by the First Amendment). To this end, this Essay consider two possibilities: a) focusing on evidence of interfaces’ manipulative success in changing consumers’ choices; and b) targeting interfaces that display key manipulative features that increase the risk of manipulation.

Finally, this Essay briefly examines how online manipulation in the political setting poses harms of its own that may also justify appropriately tailored regulatory intervention (even while recognizing that the First Amendment barriers to such regulation are significantly greater in this context than in the commercial setting) and closes by highlighting some possible interventions that deserve further consideration.

Keywords: manipulation, first amendment, free speech, algorithms, consumer protection, platforms, ethics

JEL Classification: K1