Press protections might safeguard Google’s algorithms, even from Trump

September 6, 2018
Photo: Matt Johnson/flickr

President Trump indicated last week that the White House is looking into regulating Google, Facebook, and Twitter because they are, he alleges, privileging voices that criticize him while suppressing his supporters’ ideas.

He wrote, in a series of early morning tweets on August 28, that “Google & others are suppressing voices of Conservatives and hiding information and news that is good. They are controlling what we can & cannot see. This is a very serious situation – will be addressed!” Trump’s suggestion that these companies are privileging certain information while suppressing other content followed similar accusations made by Infowars founder Alex Jones and other right-wing figures of bias against conservatives.

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How, exactly, would this blanket suggestion to regulate these companies work? When we’re talking about regulating the information that comes up in Google searches or appears in people’s timelines on Facebook or Twitter, we’re really talking about governing algorithms and the decisions they make about which information should be provided and prioritized.

Regulating algorithms might seem like entirely new legal territory, since Google and its cousins are only two decades old. But a newspaper case from 1974 has quite a bit to say about whether the government can control, under the First Amendment, companies’ algorithms and how they produce and organize information.

In Miami Herald v. Tornillo, the Supreme Court struck down a Florida law that gave political candidates the “right of reply” to criticisms they faced in newspapers. The law required the newspaper to publish a response from the candidate, and to place it, free of charge, in a conspicuous place. The candidate’s lawyers contended that newspapers held near monopolistic roles when it came to reaching audiences and that compelling them to publish responses was the only way to ensure that candidates could have a comparable voice.

Nearly 45 years later, we are hearing a similar argument. Google and Facebook do not face any significant competition. If they manipulate their algorithms to privilege certain information, those who are harmed have comparatively limited tools through which to be heard.

In the Herald case, the paper refused to comply with the law. Its editors argued the law violated the First Amendment because it allowed the government to compel a newspaper to publish certain information. The Supreme Court resoundingly agreed with the Herald. Justices explained that the government cannot force newspaper editors “to publish that which reason tells them should not be published.”

What’s important in 2018, however, isn’t simply that the law was unconstitutional. Justices used the decision to highlight that the government cannot compel expression. At the same time, they recognized that newspapers are businesses as well as journalistic endeavors. In one passage, the majority opinion explains that a “privately owned newspaper” has only two responsibilities: to publish information that is of interest to “a sufficient number of readers—and hence advertisers—to assure financial success; and, second, the journalistic integrity of its editors and publishers.”

Justices also emphasized that the information editors select for their audiences is part of a process and that the government has no role in that process. “The choice of material to go into a newspaper,” the Court wrote, “and the decisions as to limitations on size and content of the paper, and treatment of public issues and public officials—fair or unfair—constitute the exercise of editorial control and judgment.”

Google is not a newspaper and algorithms are not human editors. Should a search engine or social media company’s algorithm-based content decisions be protected in similar ways as those made by newspaper editors? According to two federal court decisions, the answer is yes.

A North Carolina man in 2007 sued to force Google to include his websites in its search outcomes and to publish advertisements on his websites. Google had refused to fulfill both of these requests. The website publisher argued that Google had opened itself up to being a type of public forum, thus giving him a right to enter that forum with his ideas. The federal judge found, citing the Herald’s case, that Google cannot be compelled to speak.

Similarly, an Oklahoma company in 2003 sued Google after its website was dropped significantly within the search engine’s results. The company argued that Google intentionally manipulated its algorithms because its website was competing against Google for advertising revenue. The judge sided with Google’s right to adjust its algorithms freely. The judge likened Google’s algorithmic outputs to opinions, ultimately concluding that the company cannot be compelled to change its opinions simply because someone disagrees with them.

Here, the process, which involves the . . . algorithm, is objective in nature,” the judge explained. “In contrast, the result, which is the PageRank—or the numerical representation of relative significance of a particular website—is fundamentally subjective in nature.” Ultimately, the judge compared Google’s algorithms to the types of judgments that credit-rating companies make. These firms have a right to develop their own processes and to communicate the outcomes.

A final connection between journalistic protections and algorithms came in the Supreme Court’s ruling in Citizens United v. FEC in 2010. The case focused on the parts of the Bipartisan Campaign Reform Act that limited certain types of corporate donations during elections. Citizens United, which challenged the law, is a political action committee. Chief Justice John Roberts, in a concurring opinion, drew news organizations into the Court’s discussion. He explained that the law, because of its limits on corporate spending, could allow the government to halt newspapers from publishing certain information simply because they are owned by corporations. This, he concluded, would harm public discourse.

In striking down the law—and citing the Miami Herald case in the majority opinion in the process—the Court reinforced and expanded freedom of expression protections for corporations.

Any attempt to regulate Google’s and other corporations’ algorithmic outputs would not only have to overcome the hurdles the Supreme Court put in place in the Herald case regarding compelled speech and editorial decision-making,  it would also have to overcome the Citizens United precedent that corporate speech, which would also include a company’s algorithms, is protected by the First Amendment.

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Jared Schroeder is an assistant professor of journalism at Southern Methodist University, where he specializes in First Amendment law. He is the author of The Press Clause and Digital Technology’s Fourth Wave.