Platforms, the First Amendment and Online Speech: Regulating the Filters

In recent years, online platforms have given rise to multiple discussions about what their role is, what their role should be, and whether they should be regulated. The complex nature of these private entities makes it very challenging to place them in a single descriptive category with existing rules. In today’s information environment, social media platforms have become a platform press by providing hosting as well as navigation and delivery of public expression, much of which is done through machine learning algorithms. This article argues that there is a subset of algorithms that social media platforms use to filter public expression, which can be regulated without constitutional objections. A distinction is drawn between algorithms that curate speech for hosting purposes and those that curate for navigation purposes, and it is argued that content navigation algorithms, because of their function, deserve separate constitutional treatment. By analyzing the platforms’ functions independently from one another, this paper constructs a doctrinal and normative framework that can be used to navigate some of the complexity. The First Amendment makes it problematic to interfere with how platforms decide what to host because algorithms that implement content moderation policies perform functions analogous to an editorial role when deciding whether content should be censored or allowed on the platform. Content navigation algorithms, on the other hand, do not face the same doctrinal challenges; they operate outside of the public discourse as mere information conduits and are thus not subject to core First Amendment doctrine. Their function is to facilitate the flow of information to an audience, which in turn participates in public discourse; if they have any constitutional status, it is derived from the value they provide to their audience as a delivery mechanism of information. This article asserts that we should regulate content navigation algorithms to an extent. They undermine the notion of autonomous choice in the selection and consumption of content, and their role in today’s information environment is not aligned with a functioning marketplace of ideas and the prerequisites for citizens in a democratic society to perform their civic duties. The paper concludes that any regulation directed to content navigation algorithms should be subject to a lower standard of scrutiny, similar to the standard for commercial speech

Online civic intervention: A new form of political participation under conditions of a disruptive online discourse

In the everyday practice of online communication, we observe users deliberately reporting abusive content or opposing hate speech through counterspeech, while at the same time, online platforms are increasingly relying on and supporting this kind of user action to fight disruptive online behavior. We refer to this type of user engagement as online civic intervention (OCI) and regard it as a new form of user-based political participation in the digital sphere that contributes to an accessible and reasoned public discourse. Because OCI has received little scholarly attention thus far, this article conceptualizes low- and high-threshold types of OCI as different kinds of user responses to common disruptive online behavior such as hate speech or hostility toward the media. Against the background of participation research, we propose a theoretically grounded individual-level model that serves to explain OCI

Search Engines, Social Media, and the Editorial Analogy

Deconstructing the “editorial analogy,” and analogical reasoning more generally, in First Amendment litigation involving powerful tech companies

Are Investors Warned by Disclosure of Conflicts of Interest? The Moderating Effect of Investment Horizon

Financial analysts are required to disclose conflicts of interest (COI) in their research reports, but there is limited evidence on the effectiveness of COI disclosures. We investigate whether the influence of disclosing COI in analyst reports on investors' decision making depends on investment horizon. Experimental results show that short-term investors who view a COI disclosure are significantly less willing to invest in the recommended stock compared to short-term investors who do not view such a disclosure, while the presence of a COI disclosure does not significantly affect long-term investors’ willingness to invest. Results further demonstrate that the COI disclosure decreases short-term investors’ willingness to invest by reducing their perception of analysts’ trustworthiness and expertness. This study provides evidence on when and how the COI disclosure can influence investors’ behavior and enhances our understanding of investors’ reactions to cautionary disclaimers