David Golumbia (Virginia Commonwealth University) and Frank A. Pasquale (Brooklyn Law School) “From Public Sphere to Personalized Feed: Corporate Constitutional Rights and the Challenge to Popular Sovereignty” (Human Rights after Corporate Personhood, edited by Jody Greene & Sharif Youssef (Toronto: Univ. of Toronto Press, 2020)) on SSRN. Here is the abstract:

What might a society look and feel like in which the free expression rights of for-profit corporations eclipse and override persons’ rights to privacy, and interests in fair political representation? And how might the acceleration of current trends toward corporate personhood erode the autonomy of actual persons? This chapter explores these questions through two prisms: U.S. jurisprudence of corporate free speech rights, and an imaginative evocation of one fictional world this jurisprudence is leading towards.

The first section makes the case that many aspects of American legal culture pave the way to a public sphere in which corporations have far more meaningful political agency and capacity for planning than citizens or even political parties. The second section introduces the setting of M.T. Anderson’s Feed, a dystopian novel with surprisingly rich insight into the habits of mind and character that would naturally thrive in an automated public sphere (and kaleidoscopic personalized feeds) even more dominated by for-profit corporations than our own. We conclude by reflecting on the fragility of opportunities for autonomous self-creation when communications are increasingly monitored, shaped, and monetized for profit.

Neil Weinstock Netanel (University of California, Los Angeles – School of Law) has posted “Mandating Digital Platform Support for Quality Journalism” (34 Harvard Journal of Law &Technology (forthcoming Spring 2021)) on SSRN. Here is the abstract:

Our democracy depends on a vibrant press, dedicated to informing the electorate and holding the powerful to account. Yet American newsrooms have suffered a debilitating economic decline in recent years, leaving more than half of U.S. counties without a daily newspaper and precipitating massive reductions in journalist employment. Digital platforms, primarily Google and Facebook, have been a primary cause of newsrooms’ decline. In asserting unparalleled dominance over the digital advertising market, they have siphoned off the advertising revenues that were the lifeblood of the commercial news media. And they have come to be news publishers’ primary gateway to potential readers, leaving newsrooms highly dependent on the platforms’ mercurial content selection and magnification algorithms.

This Article thus proposes legislative initiatives to require digital platform support for quality journalism. Finding current antitrust enforcement initiatives and legislative proposals for news publishers’ intellectual property rights and antitrust exemptions wanting, it sets out blueprints for an excise tax on digital advertising to fund quality journalism and for bolstering newsroom brands by mandating that major platforms give original reporting prominent placement in news feed and search results. News publishers should also have a right to require platforms to include a link to the publisher website and to display a third party media watchdog trustworthiness rating of the publisher’s choice. Finally, major platforms should be required to open their application programming interfaces to enable news publishers to offer the publishers’ own curated news content feed directly to platform users.

Those measure, I argue, should survive First Amendment scrutiny. They might not salvage quality journalism in and of themselves. But they are an important springboard for further government intervention in an ongoing market failure with dire consequences for democratic governance.