We can resolve the constitutional question via the plain meaning of the Constitution’s words.
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One of two alternative scenarios would likely occur.
One scenario is that Google and Facebook would be classified as “neutral conduits.” In that case, they would lack discretion to moderate content, so they would have to carry all content, including content from spammers, fraudsters, bots, foreign election manipulators, and so on.
Google and Facebook also routinely say the opposite (which the paper doesn’t recount), and their inconsistent statements reflect the disparate audiences for their messages. Let’s assume that the paper’s analysis is right and that, having rejected the editorial analogy, courts decide that Google and Facebook should receive only limited or no First Amendment protection.
The paper does not really explore the regulatory implications of this possibility.
Google, Facebook, and other user-generated-content services have created enormous social value that enriches our lives many times an hour.
Allowing regulators to destroy that value is something we should aggressively resist.
Even though some of these operations are automated, both Google and Facebook rely on humans to make all publication and withdrawal editorial decisions.
For example, Google refines its search results using the feedback of “search quality evaluators” who apply 160 pages of editorial guidelines.
Google and Facebook Engage in Speech and Press Activities (No Analogy Required) Whitney’s paper never precisely defines the “editorial analogy” that it deconstructs. its handling of a feature like Trending Topics is analogous to a newspaper’s editorial choices.” This analogy, if apt, should mean that Facebook (and Google) qualify for First Amendment protection just like newspapers do.
This passage from the paper provides one of several examples of the analogy: “Facebook is analogous to a newspaper and . Whitney’s paper questions this argument in several ways, including by distinguishing Google’s and Facebook’s practices from those of newspapers.