Thursday, August 8, 2013
Andrew Tutt, Yale University Law School, is publishing The New Speech in volume 41 of the Hastings Constitutional Law Quarterly (2014). Here is the abstract.
Could the government prevent Facebook from deleting an individual’s Facebook account without first following government-prescribed procedures? Could the government intervene to require Google to conduct its search engine rankings in a certain manner, or subject Google to legal liability for wrongful termination or exclusion? Could social networks and search engines be required to prominently reveal the criteria by which their algorithms sort, order, rank, and delete content? Could the government demand that some user information or data be deleted, withheld, made inalienable, non-transferable, ungatherable or uncollectable? Could the government engage in detailed regulation of the Intellectual Property and Privacy relationships that inhere between individual users and the platforms they engage?
All of these questions implicate the First Amendment as it is currently configured. And as these questions reveal, the same stresses that strained the institution of property when Charles Reich wrote The New Property in 1964 now confront The New Speech in 2014. The most important “speech” of the next century will be generated, intermediated, transformed, and translated by dominant institutions through powerful computers: petitions in front of the shopping mall replaced with calls for “Likes” and “Votes” on Facebook and Reddit; sports leagues replaced by leagues of Counter-Strike and Call of Duty; broadcast and cable news replaced by interactive, algorithmically-generated, computer-curated granularly distributed news memes spread via blogs and aggregators.
As more and more of the activities that were once exclusively the province of the physical world become the province of the digital, more and more of the issues that once confronted the distribution and allocation of rights in property will confront the distribution and allocation of rights in Speech. While the great Speech debates of the twentieth century were about the content of speech — that is, what one could say, the great Speech debate of the twenty-first century will be about what counts as Speech and whose Speech counts. Will it be that of institutions and their sophisticated algorithms, or individuals and their impromptu communities?
These are questions courts are already confronting and they are getting the answers wrong. In contrast to scholars who by turns either deemphasize the transformative nature of the New Speech or argue that Courts will have little impact on its growth, this Article argues that potentially critical judicial missteps are already occurring. Just as the needs of modern industrial society were delayed and often stymied by the judiciary of the early twentieth century, if we fail to consider the implications of the speech decisions courts make now, the needs of the modern information society may be delayed and stymied by the judiciary of the early twenty-first.
This Article is an effort to explore the ways in which speech platforms represent a wholly new challenge to the First Amendment, one that will require the First Amendment to bend if we are to prevent the Lochnerization of the Freedom of Speech. It ties together various threads — the power of automation, the centrality and power of Internet media platforms, the doctrines developing in the courts, the actual acts of censorship in which these platforms regularly engage, and the core purposes the First Amendment was designed to serve — to make a sustained argument that we must think seriously about restructuring and dejudicializing the First Amendment if we are to avoid seeing the First Amendment transformed into a powerful shield for the very sorts of censorship it was written to prevent.
Download the article from SSRN at the link.