First Amendment Term Paper

Internet giants like Google and Facebook have accumulated unprecedented scale and power, and this has spurred many academic papers strategizing ways to regulatorily “fix” them. The paper questions whether Google and Facebook are best analogized to traditional publishers like newspapers.

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Google and Facebook sort and prioritize the remaining third-party content using complex algorithms reflecting human-established editorial decisions, and then they publish the content to their readers.

Second, Google’s search engine and Facebook’s newsfeed frequently withdraw previously published third-party content using a combination of automated removal tools and human decisions.

After undermining the “editorial analogy,” the paper suggests several potential alternative analogies that might let regulators “fix” Google and Facebook. First, the paper’s parsing of analogies doesn’t resolve the constitutional questions, because it is so clear that Google’s and Facebook’s activities qualify for First Amendment protection that no analogies are required.

Second, the paper seeks to enable regulation that would be a net loss for all of us.

First, both Google’s search engine and Facebook’s newsfeed decide what third-party content to publish.

They implement their publication decisions using automated screens to filter out third-party content that their human editors have deemed unsuitable.

Conclusion I understand the widespread suspicion and fear of the power held by internet giants like Google and Facebook.

I too am skeptical of any institution that has so much power.

(Imagine Facebook where human editors must review and approve all user status updates before publication, or Google where human editors must review and approve every search listing before incorporating it into the search database.) Otherwise, if they try to function as neutral conduits, Google and Facebook quickly would be overwhelmed by harmful and useless content, and that surely would spur the “mass exodus” of users mentioned by the paper.

An alternative scenario is that regulators would have virtually unlimited discretion to tell Google and Facebook how to run their services.


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