The Knight First Amendment Institute 

The Knight First Amendment Institute defends the freedoms of speech and the press in the digital age through strategic litigation, research, and public education. Our aim is to promote a system of free expression that is open and inclusive, that broadens and elevates public discourse, and that fosters creativity, accountability, and effective self-government.

We've been here before. 

Heather Whitney, "Search Engines, Social Media, and the Editorial Analogy" 

Recommended to me by David Pozen, the editor of the series this essay is a part of, who didn't understand my question

Whitney's concerns about the "editorial analogy" are entirely about whether Google and Facebook have the right to free speech, not about scale and the ability to regulate public information. The only mention of Section 230 is about Yelp!

Whitney

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.

She goes into the history of the editorial analogy in court, beginning with Zhang v. Baidu.com, Inc. where plaintiffs lost.

First, the Court noted that the government may not interfere with the content of private writers on matters of public concern. Second, the Court explained this rule is not restricted to the press but afforded to all individuals. 

The dominant search engine in a one-party state, under strict state censorship has "free speech", as judged by the courts in a putative democracy. This calls for an analysis of the court and judicial appointment, but she doesn't do that. 

With no attention paid to the claim that Baidu was acting on behalf of the Chinese government the court saw the relevant precedent as Miami Herald Publishing Co. v. Tornillo. There, the U.S. Supreme Court found unconstitutional a statute that required newspapers to provide political candidates a right of reply to critical editorials. The court in Baidu also saw Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston as an extension of Tornillo, equally applicable to Baidu. In Hurley, the Court ruled that requiring parade organizers to permit a pro-LGBT group to participate would entail unconstitutionally compelling the parade organizers to speak.

The parade in Hurley was nationalist pageantry. If Nazis have the right to march, then conservative Irish organizations have the right too. I doubt that anyone in there was flying the Union Jack. And the Miami Herald isn't exactly monopoly material.

next up:  e-ventures Worldwide, LLC v. Google, Inc, where it won again.

That Google’s actions were commercial and arguably anticompetitive did not matter. That Google was alleged to have made deceptive statements did not matter. On the contrary, the court expressly opined that Google’s free speech rights protect its listing and delisting decisions “whether they are fair or unfair, or motivated by profit or altruism.” The court’s conclusion that if Google’s results were speech, unfair competition laws could not apply is deeply problematic and difficult to square with the obvious fact that laws addressing unfair and deceptive advertising prohibit certain speech all the time. This conclusion underscores the editorial analogy’s powerful influence and what its successful use puts at stake. 

"This conclusion underscores the editorial analogy’s powerful influence". 

If a court decides that there was no incitement when a man is beaten to death after someone on stage points at him and screams "KILL HIM! KILL HIM!", does that show the "powerful influence" of the doctrine of free speech, or maybe influence of another sort?

The writing is observational, not critical. I'd want to know the judges' history. I'd want to know where and how to put pressure not within the justice system but outside it. But she turns it into a philosophy lecture. At the time of writing, Whitney was a PhD candidate in philosophy

Introducing a description of the weaknesses of the editorial analogy. 

Take the action of eating a sundae without permission. If I work at the ice cream shop from which I took that sundae, a reprimand from my employer might be merited. But say instead that I’m a professor. We likely think that it would be absurd for my employer to reprimand me for eating a sundae without permission. In both cases I did the same thing — ate a sundae without permission — but additional facts change what treatment we think that same action merits. Put simply, even when A and B have some similarities, there can be relevant dissimilarities between them that renders treatment y appropriate for one but not the other.

This is lemonade from lemons, but she's enjoying herself. Puzzles are fun.

In response to Volokh's Google-sponsored paper defending Google's first amendment rights, she finds ways to argue that Google's not a publisher. She even resorts to citing J.L Austin, and Stanley Fish. But since the charge of abuse of raw power has has been rendered moot for now at least, this is the best she thinks she can do. She writes pages making the argument that choices made by stores are not speech. 

If any individual or organization who satisfies this “conveys a wide range of information” criterion is deemed analogous to newspaper and book publishers for First Amendment purposes, then we have misunderstood how liberal political theory and free speech theory work. At the heart of liberal political theory is the idea that everyone is free to live according to their own ideals, so long as doing so does not unduly interfere with other people’s ability to do likewise. 

And that's the Panglossian optimism of liberal political theory. The actual justification for freedom of speech is that the government can't be trusted to judge. 

Freedom of speech follows from freedom of inquiry. "Academic freedom predates free speech." as the openly elitist Eric Rauchway says, and so  he defends its primacy even now. This is the reason Brian Leiter and so many others oppose freedom of speech for the masses. (Lehrfreiheit, Krieger, and The German Idea of Freedom.) Liberal political theory is the equivalent of Kantian private reason, the reason of managers.

Liberal political theory is anti-political, because all philosophy is anti-political. Politics is vulgar. "Democracies have freedom of speech not because governments grant it but because the government is not granted the power to take it away." Every lawyer who works in criminal law knows why you represent people you know are guilty. If the cops can fuck the criminals they can fuck anybody. What's that got to do with liberal political theory? 

I repeat that again and again because it's something legal theorists, descending from the anti-democratic origins of philosophy, and Weber's "sovereign", can't accept.

Whitney 

A bookstore selects which books to sell. Wouldn’t we say that its selection of those books is itself speech? And if so, doesn’t that show that curating other people’s speech is necessarily speech itself? Once again, I think the answer is no. First, I hesitate to grant the premise — that we would call a bookseller’s book selections an independent instance of protected speech. I say this because in cases where the state has banned the sale of protected speech, the Court has invoked either the First Amendment rights of speech creators or would-be speech buyers. 

I'm going to open a bookstore. I'm going to name it BUÇH࿕࿕TREME (with the C as a sickle and T as a hammer—this is the best I could do). I'll stock nothing but the best: The Protocols of the Elders of Zion and Mein Kampf, The Complete Diaries of Theodor Herzl and the poetry of Avraham Stern; the complete works of Sayyid Qutb and Pol Pot;  Collected works of The Communist Party of Peru, and Decision of The Central Committee of the Chinese Communist Party Concerning the Great Proletarian Cultural Revolution; The Turner Diaries and the novels of Saddam Hussein, in a boxed set with a case. There's a lot more out there. It would take a lot of work. I'll call it conceptual art. Maybe I could get funding.

This goes back to Tushnet—see the mention of Hurley—and legal scholars who see law as more than a blunt instrument. Law oversimplifies everything out of necessity. Most lawyers understand that, but academics don't. Lawyers keep their arguments as simple as possible because their prime interest is winning. A pornographic book store is probably not going to open next to a high school, but if all his books are banned he's out of business. 

Second, and more fundamentally, even if a bookseller’s choice of which books to sell counts as speech, that still does not show that (1) every time an entity curates third-party speech that curation is itself speech, 

This is the key. Global monopoly is untouchable so she needs a way to get government to regulate speech on the platforms, out of sincere concern for our well-being without. But government serves its own interests. In 2013, after 65 years, the ban on US government propaganda directed at US citizens was repealed. Another mark of change.

And Whitney seems to take reps and corporate lawyers at their word. And her use of "we" and "our" is just annoying.

When we diagnose what went wrong with regard to fake news, we need not conclude that Facebook made the mistake of trying to be too neutral. Instead, we can realize that our (and their) previous conception of what “neutrality” entailed — not privileging certain news sources and treating all sources of “news” the same — was wrong. Facebook, and the rest of us, learned that treating fake news sites on a par with the Wall Street Journal and the New York Times is saying something very not “neutral” about how we should treat information from those sites. Just recently, Facebook announced that it will once again rank news sources, but this time it plans to do so based on user evaluations of those sources. We can debate this method as well, but it represents yet another attempt by Facebook to figure out what “neutral” means and then do it.

Finally, like Google, Facebook and Twitter were asked during recent congressional hearings how they “respond to . . . the growing concerns that [they] and other Silicon Valley companies are putting a thumb on the scale of political debate and shifting it in ways consistent with the political views of [their] employees?” Facebook General Counsel Colin Stretch replied, “Senator, again, we think of ourselves as a platform of all ideas — for all ideas and we aspire to that.” Stretch then discussed training given to prevent bias in its employees, saying, “We want to make sure that people’s own biases are not brought to bear in how we manage the platform.” Responding to the same question, Sean Edgett of Twitter insisted that “our goal and . . . one of our fundamental principles at the company is to remain impartial.”

They would would say that, wouldn't they?"

Her paper is dated Feb 27, 2018

July 2018, in the Guardian: Is Facebook a publisher? In public it says no, but in court it says yes 

Facebook has long had the same public response when questioned about its disruption of the news industry: it is a tech platform, not a publisher or a media company. 

But in a small courtroom in California’s Redwood City on Monday, attorneys for the social media company presented a different message from the one executives have made to Congress, in interviews and in speeches: Facebook, they repeatedly argued, is a publisher, and a company that makes editorial decisions, which are protected by the first amendment. 

If Facebook is a publisher if can be sued for the actionable libel and slander it publishes. But it can't be because of Section 230

Whitney goes through other analogies: law schools, shopping malls, fiduciaries and company towns. She forgets the obvious: the only thing Facebook sells is users' data. And it feeds them crap that reinforces what biases they have. If "the town square" is owned by a corporation, then public space has been privatized. If there are no first amendment rights in the town square, the people have to take it back. Some knots can't be untied; they have to be cut. 

Amnesty International, September 29,  2022

Beginning in August 2017, the Myanmar security forces undertook a brutal campaign of ethnic cleansing against Rohingya Muslims. This report is based on an in-depth investigation into Meta (formerly Facebook)’s role in the serious human rights violations perpetrated against the Rohingya. Meta’s algorithms proactively amplified and promoted content which incited violence, hatred, and discrimination against the Rohingya – pouring fuel on the fire of long-standing discrimination and substantially increasing the risk of an outbreak of mass violence. The report concludes that Meta substantially contributed to adverse human rights impacts suffered by the Rohingya and has a responsibility to provide survivors with an effective remedy.

Whitney's last paragraphs. 

Democratic ideals are invoked by many influential First Amendment scholars to explain and defend U.S. free speech doctrine.¹⁹⁷  Building on this tradition, the democratic participation theory of free speech says that speech must be protected in order to ensure “the opportunity for individuals to participate in the speech by which we govern ourselves.”¹⁹⁸  How do we decide what counts as “speech” using democratic participation as our normative reference point? We cannot construe the ideal too broadly, such that all parts of social life are part of the project of self-government, for in encompassing everything, the ideal would prioritize nothing. Instead, the ideal of democratic participation requires us to conceptually divide society into two domains: public life, where we act as citizens cooperating in collective self-governance, and private life, where we act independently in the service of our own projects. For free speech principles grounded in democratic participation, “speech” denotes whatever forms of communication are integral to collective self-governance. Of course, there will be complications at the margins, but the basic implications of the democratic participation theory are discernible all the same. Free speech principles are not meant to immunize all communication against legitimate regulatory aims. They are meant to support the project of collective self-government by safeguarding the communicative conduct that is essential to that project’s realization.

With those clarifications in place, the pertinent question for our purposes is which sorts of ostensible “speech” — be it algorithmic outputs in the form of rankings, listing decisions, trending topics, and so on — help the project of democratic self-government and which do not? At this moment, we can certainly appreciate how troll armies, fake accounts, and bots can be anathema to these projects. The economic decisions that companies like Google make in determining which ads to run or whether to privilege their own products against rivals like Yelp and TripAdvisor are, as I said, commercial and need not be seen as worth protecting as “speech” for the sake of democratic self-governance, at least across the board.¹⁹⁹ That’s not to say that these decisions should necessarily be regulated but instead to show why, under democratic participation theory, they could be, without running afoul of the First Amendment.

The “thinker-based” theory, recently developed by Seana Shiffrin, identifies “the individual agent’s interest in the protection of the free development and operation of her mind” as the normative keystone of free speech. Whereas other theories situate the value of the thinker in relation to extrinsic ideals or desiderata, this theory identifies a direct and non-contingent link between the value of mental autonomy and the justification for the protected status of communicative conduct. Again, however, not all communication is privileged under such a theory. If we prioritize the “fundamental function of allowing an agent to transmit . . . the contents of her mind to others and to externalize her mental content,” then we will need to have special protections for people sharing all of this “content” with others. This is part of what makes Shiffrin’s theory distinctive: The expression of thoughts about politics and government does not occupy an exalted position relative to the expression of thoughts about everyday life. But crucially, what is especially protected in this theory is not communication as such but the communication of the thought of individuals. And this will tend to assign a less privileged status to much commercial communication. So when we revisit our key questions — whether programs that synthesize, organize, rank, and transmit third-party communication to users are implicated in “the fundamental function of allowing an agent to transmit the contents of her mind to others” — the diagnosis is mixed, as in the previous case.

One interesting consequence of the thinker-based theory is that, unlike the democratic participation theory, it sug- gests that facilitation of everyday online chatter by search engines and social networks may be as much a part of the case for protecting (some of) their operations as their role in facilitating political discourse. But as with the democrat- ic participation theory, much of what these programs do — including running ads and allowing for the creation of bot armies and the spread of fake and inflammatory news — will likely fall outside the scope of free speech coverage by the lights of this normative approach.

CONCLUSION

In debates over tech companies and free speech coverage, neither the gravity of the policy stakes nor the complexity of the things being compared has dampened the willingness of courts and scholars to use ten- uous analogies in charting the way forward. Most everybody seems to agree that search engines and so- cial media platforms should be covered by principles of a free press, if and to the extent that the reasons underlying our protection of the press apply to them. But the point of this paper is that casual analogical methods—observing that both types of things “convey a wide range of information” or “rank and organize content”—do not tell us whether or to what extent they do. There are multiple plausible analogies that might be used, each with different First Amendment implications, and none tells us whether the normative considerations underlying free speech coverage for the one apply to the other. But if those normative considerations are inapplicable, the reason to extend coverage disappears.
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197 Alexander Meiklejohn, Free Speech and Its Relation to Self-Government 22–27 (1948); Robert Post, The Constitutional Conception of Public Discourse: Outrageous Opinion, Democratic Deliberation, and Hustler Magazine v. Falwell, 103 Harv. L. Rev. 601 (1990).

198 James Weinstein, "Participatory Democracy as the Central Value of American Free Speech Doctrine", 97 Va. L. Rev. 491, 491 (2011).

199 See supra notes 37–38 and accompanying text.

But this too might change. In what Yelp’s vice president of public policy described as the “most significant enforcement event in consumer tech antitrust” since the action against Microsoft in 2000,³⁶ Google was fined a record-breaking €2.4 billion by European regulators in June 2017 for abusing its market dominance by giving an illegal advantage to its own products while demoting rivals in its comparison shopping service, Google Shopping.³⁷ While EU actions do not ensure any movement domestically, they can bring to light information that further tarnishes Silicon Valley’s reputation and thus contributes to the erosion of the basis for its companies’ exceptional treatment to date. Within the United States, moreover, Yelp and TripAdvisor have repeatedly argued that Google deliberately diverts users searching for their sites to Google-owned alternatives. Google has said that some of these results are the result of bugs, but its competitors argue otherwise.³⁸ It is at least possible that a major (and well-funded) lawsuit in the United States — and with it, a vigorous battle over First Amendment coverage, the editorial analogy, and unfair competition laws — may yet materialize.
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36 Klint Finley, Google’s Big EU Fine Isn’t Just About The Money, Wired (Jun 27, 2017), http://www.wired.com/story/google-big-eu-fine. 

37 Josie Cox, "Google Hit with Record EU Fine over 'Unfair' Shopping Searches", Independent (June 27, 2017), http://www.independent.co.uk/news/business/news/google-eu-fine-latest-competition-shopping-searches-prepare-online-european-commission-results-a7809886.html.

38 Mark Bergen, "Google Says Local Search Results That Buried Rivals Yelp, TripAdvisor Is Just a Bug", Recode (Nov. 24, 2015), http:// www.recode.net/2015/11/24/11620920/google-says-local-search-result-that-buried-rivals-yelp-tripadvisor. now Vox and archive.org

200 Seana Valentine Shiffrin, "A Thinker-Based Approach to Freedom of Speech", 27 Const. Comment. 283, 287 (2011). See generally Seana Valentine Shiffrin, Speech Matters: On Lying, Morality, and the Law (2014). 

"It is at least possible that a major (and well-funded) lawsuit in the United States — and with it, a vigorous battle over First Amendment coverage, the editorial analogy, and unfair competition laws — may yet materialize."  

There's no conflict between the "editorial analogy" and antitrust. That's why "media concentration" is an issue. But Whitney isn't against media concentration. It makes it the government's job easier. 

This is all just a fucking joke. And it gets worse. Remember: "Academics, though it sounds odd to say it, don’t take ideas seriously."

Shiffrin, Speech Matters: On Lying, Morality, and the Law. The blub at Princeton University Press

To understand one another as individuals and to fulfill the moral duties that require such understanding, we must communicate with each other. We must also maintain protected channels that render reliable communication possible, a demand that, Seana Shiffrin argues, yields a prohibition against lying and requires protection for free speech. This book makes a distinctive philosophical argument for the wrong of the lie and provides an original account of its difference from the wrong of deception.

Drawing on legal as well as philosophical arguments, the book defends a series of notable claims—that you may not lie about everything to the “murderer at the door,” that you have reasons to keep promises offered under duress, that lies are not protected by free speech, that police subvert their mission when they lie to suspects, and that scholars undermine their goals when they lie to research subjects.

Many philosophers start to craft moral exceptions to demands for sincerity and fidelity when they confront wrongdoers, the pressures of non-ideal circumstances, or the achievement of morally substantial ends. But Shiffrin consistently resists this sort of exceptionalism, arguing that maintaining a strong basis for trust and reliable communication through practices of sincerity, fidelity, and respecting free speech is an essential aspect of ensuring the conditions for moral progress, including our rehabilitation of and moral reconciliation with wrongdoers.

Somewhere on this page I think I've posted a clip from or a trailer for Liar Liar.  But it's fitting that Princeton was also the publisher of Brennan's Against Democracy.

I'm going to end with a restatement of the only argument for free speech I've ever taken seriously, the only argument my parents took seriously, and which no one above even mentions. It's the opposite of liberal political philosophy. Ira Glasser is a few years younger than my parents. He started later at the ACLU, and he was there as the rot set in. He may have even been responsible for some of it, but this is good.

"Why we must fight for the right to hate"

In my experience, everyone supports the right to freedom of speech, as long as it’s their own speech or the speech of people they agree with. But most speech falls outside that category. Most people would ask: why support the right of people to say things you hate, or fear or that you regard as dangerous?

...The speech that social-justice advocates hate is not the same as the speech that Donald Trump hates. And if it became legal to ban hateful speech, it could just as easily be Trump and people like him, rather than social-justice advocates or people like me, who would most often be in a position to decide whose speech was hateful enough to ban.

Speech restrictions are like poison gas: they seem like a good idea when you’ve got the gas and a deserving target in sight. But then the wind shifts and blows the gas back on you.

In 1974, in England, the National Union of Students succeeded in getting racist speech banned on university campuses. One of the groups supporting the ban was an organisation of Zionist students. In 1977, the NUS decided that Zionism was a form of racism, and banned Zionists from speaking on campuses.

The wind had shifted.

Unless you’re an autocrat, and confident of holding power forever, you don’t want the government having the power to decide whose speech to ban. Because sooner or later, it will be yours.

That's not liberal optimism; it's political realism in the context of principle. And it's not Judith fucking Shklar. 

Leiter pretends to understand—he's lying—or he's more of an idiot than I thought.

This is a version of what I think is the most plausible defense of free speech, [linking to his argument against free speech] namely, distrust of government to figure out which speech actually lacks value.  Of course, it depends on an empirical premise:  namely, that a blanket rule prohibiting suppressing speech based on its content will, in fact be observed by fascists--or, more precisely, that when a judiciary is acclimated to such a rule, they will stick to it were a fascist in power.  I wish I could be confident that is true, but I'm hopeful that in a large country, with a fairly independent judiciary, it will be.

The premise is that a free people, being vigilant, knowing that vigilance is their own responsibility, will choose freedom. Taleb would say they had "skin in the game". A free people takes the plural, which is why liberalism fails: liberal individualism leads to its opposite.

"It is the common fate of the indolent to see their rights become a prey to the active. The condition upon which God hath given liberty to man is eternal vigilance; which condition if he break, servitude is at once the consequence of his crime and the punishment of his guilt."

"What's needed is an argument in defense of the need for citizens in a democratic state to be able to be all kinds of wrong, all kinds of confused, creepy, conflicted, desirous, weepy or hate-filled, so that they may be able to learn to understand and outgrow their childishness. The choice is between a community of adults with a minority of the inveterately childish and criminal or a community of children ruled by moralists and crime lords."

The vigilance of the people. Liberals don't want an educated populace and that's why we don't have one.

Beginning in the 1950s and blossoming since 1961, a major scholarly controversy has sucked The Federalist into its gravitational field: What was its role in the great shift from republicanism to liberalism in American political thought? These complex bodies of ideas and practices have almost no direct links to today’s Republican party or modern American liberalism; moreover, these terms have become so vague that many historians have abandoned both words as useless.

There's a reason there are riots now in France. The French have some sense of the ideals of a republic. I could keep annotating, Weber, Lawrence, Tocqueville, Montesquieu, Arendt. You get there if you if you follow the links.