There’s no doubt about it: the internet giants are on Congress’s radar. Despite intensive lobbying efforts by these companies, both individually and through their collective trade association, legislation imposing new restrictions on how they operate seems increasingly likely. “You’ve created these platforms. And now they’re being misused,” Senator Dianne Feinstein told the general counsels of Facebook, Google, and Twitter in a recent hearing. “And you have to be the ones to do something about it. Or we will.”

That hearing was directed at Russian interference in the 2016 presidential campaign, but the companies are under scrutiny for a host of other reasons as well. One is the ways their own platforms shape and alter the flow of information, as when a company like Google demotes or delists competitors’ sites like Yelp! while bumping up its own Zagat-infused local offerings.

Critics decry such search engine manipulation as anti-competitive, even as a form of discrimination and suppression of certain viewpoints and information. Some have been asking the courts and Congress to intervene.

So far, in the courts, Google has successfully argued that its decisions about what to rank, the ordering of its rankings, what ads to run, what videos to allow on YouTube and who will see them are all analogous to a newspaper editor’s decisions about what op-eds to run. And since a newspaper editor’s decisions are protected speech under the first amendment, so, Google argues, are its search engine decisions.

That Google compares itself in these cases to a newspaper editor might come as a surprise, given that Google, Facebook, Twitter and others often make the contrary claim to users and governments that they are neutral platforms, mere conduits for information.



Mark Zuckerberg made that claim explicitly when Facebook was under fire from critics who were accusing the platform of suppressing conservative content in its “Trending Topics” news feed. Google still makes that claim on its support page under “search using autocomplete”, disclaiming: “Search predictions aren’t the answers to your search. They’re also not statements by other people or Google about your search terms.”



But disingenuity aside, are these companies’ practices of privileging certain information really analogous to what newspaper editors do, and therefore similarly protected by the first amendment? The answer is no.

Making decisions about what and how information is conveyed does not automatically make one an editor entitled to first amendment protection. That is what the supreme court decided, for example, in Rumsfeld v Forum of Academic and Institutional Rights (Fair), when a group of law schools argued that it could bar military recruiters from recruitment fairs for its students.



The law schools argued that requiring them to invite military recruiters was unconstitutionally compelled speech, a violation of their first amendment right to decide what information an event it sponsored would convey. But the US supreme court didn’t see it that way.



It held that the schools weren’t speaking at all when they let military recruiters on campus, even if they sent out emails on the military recruiters’ behalf. Students could tell that the law schools weren’t speaking when they invited military recruiters, the court ruled. In fact, they were doing what Google says it’s doing when it is not hiding behind the editorial analogy: serving as a neutral platform for information.

More recently, in Packingham v North Carolina, the US supreme court offered a competing analogy for social media, comparing these services to the modern public square. In Packingham, a state statute made it a felony for registered sex offenders to go on certain social networking sites. The court ultimately held that the statute unconstitutionally restricted the sex offenders’ speech in violation of the first amendment.



In coming to this holding, the court emphasized that streets and parks are the “quintessential forum for the exercise of first amendment rights … [and] while in the past there may have been difficulty in identifying the most important places (in a special sense) for the exchange of views, today the answer is clear. It is cyberspace – the ‘vast democratic forums of the Internet’ in generally, and social media in particular”.



Put succinctly, the court called cyberspace and social media “the modern public square”. If the court means what it says and sticks with the modern-square analogy, then it’s these companies that become vulnerable to first amendment challenges by users.

There are also other analogies to draw with what Google is doing (eg providing users information) that would not entitle it first amendment protection. For instance, grocery stores also provide customers information through their shelf displays. And we all know the saying that “actions speak louder than words”. We say that because actions provide information, but we surely do not think each of us an editor protected by the first amendment every time we act.

So far, the debate over what role the internet giants are playing as they gather, remix, and disseminate information has been playing out in the courts. But with the growing interest in Congress in the way social media companies are shaping public discourse suggests these questions will soon be debated there as well, very possibly with an eye toward new regulations.



This will only increase the need to understand how these companies’ models work and what purposes they are serving – and to make sure the analogies we use to describe their roles help clarify, and not obscure, first amendment values.