Balkin on Free Speech Versus the First Amendment

Jack M. Balkin (Yale Law School) has posted “Free Speech Versus the First Amendment” (UCLA Law Review, Forthcoming) on SSRN. Here is the abstract:

The digital age has widened the gap between the judge-made doctrines of the First Amendment and the practical exercise of freedom of speech. Today speech is regulated not only by territorial governments but also by the owners of digital infrastructure — for example, broadband and cellular providers, caching services, app stores, search engines, and social media companies. This has made First Amendment law less central and the private governance of speech more central.

When the free speech interests of digital companies and their end-users conflict, the major beneficiaries of First Amendment rights are likely to be the former and not the latter. Digital companies will try to use the First Amendment to avoid government regulation, including regulation designed to protect the free speech and privacy interests of end-users.

In response, internet reformers on both the left and the right will attempt to de-constitutionalize internet regulation: They will offer legal theories designed to transform conflicts over online speech from First Amendment questions into technical, statutory and administrative questions. In the U.S., at least, de-constitutionalization is the most likely strategy for imposing public obligations on privately-owned digital companies. If successful, it will make the First Amendment even less important to online expression.

The speed and scale of digital speech have also transformed how speech is governed. To handle the enormous traffic, social media companies have developed algorithmic and administrative systems that do not view speech in terms of rights. Accompanying these changes in governance is a different way of thinking about speech. In place of the civil liberties model of individual speech rights that developed in the twentieth century, the emerging model views speech in hygienic, epidemiological, environmental, and probabilistic terms.

The rise of algorithmic decisionmaking and data science also affect how people think about free expression. Speech becomes less the circulation of ideas and opinions among autonomous individuals and more a collection of measurable data and network connections that companies and governments use to predict social behavior and nudge end-users. Conceived as a collection of data, speech is no longer special; it gets lumped together with other sources of measurable and analyzable data about human behavior that can be used to make predictions for influence and profit.

Meanwhile, the speed and scale of digital expression, the scarcity of audience attention, and social media’s facilitation of online propaganda and conspiracy theories have placed increasing pressure on the standard justifications for freedom of speech, including the pursuit of truth and the promotion of democracy. The gap between the values that justify freedom of speech and what the First Amendment actually protects grows ever wider.

In response, some scholars have argued that courts should change basic First Amendment doctrines about incitement, defamation, and false speech. But it is far more important to focus on regulating the new forms of informational capitalism that drive private speech governance and have had harmful effects on democracy around the globe.

The digital age has also undermined many professions and institutions for producing and disseminating knowledge. These professions and institutions are crucial to the health and vitality of the public sphere. Changing First Amendment doctrines will do little to fix them. Instead, the task of the next generation is to revive, reestablish and recreate professional and public-regarding institutions for knowledge production and dissemination that are appropriate to the digital age. That task will take many years to accomplish.


Issacharoff & McKenzie on Managerialism and its Discontents

Samuel Issacharoff (NYU Law) and Troy A. McKenzie (same) have posted “Managerialism and its Discontents”
(Review of Litigation, Fall 2023) on SSRN. Here is the abstract:

Managerialism has rooted itself in the American system of civil litigation in the 40 years since the amendment of Rule 16 to recognize a new form of judicial authority, and since Judith Resnik gave the phenomenon the name that serves as its shorthand moniker. Time has not perfectly tamed the inherent tensions between the mantle judges had to adopt in the face of increasingly complex, high-stakes, and multi-jurisdictional disputes and their traditional role as detached adjudicators. One ready manifestation of that tension is the back-and-forth between fixed and discretionary practices in federal courts. This essay examines the gyrations between formal rules of application and those understood to be contextual, and it presents three approaches to the familiar rules/standard divide in federal procedure: formal managerialism, algorithmic managerialism, and structural managerialism. The first is readily exemplified by reforms to social security cases, which received a carve-out from the Federal Rules of Civil Procedure in 2022 and a set of formal rules tailored to their unique issues. Algorithmic managerialism hopes to harness the growing power of Artificial Intelligence to craft custom sets of discovery, motion, and other practice rules at the outset of litigation to maximize judicial economy. Lastly, structural managerialism addresses how courts choose the most efficient fora, from multidistrict litigation to bankruptcy, for resolving polycentric disputes, most notably mass torts. We conclude our review of these trends with a simple reflection: Managerialism is not just an established feature of federal judicial practice, but a new expansion may be on the horizon.

Siebecker on The Incompatibility of Artificial Intelligence and Citizens United

Michael R. Siebecker (U Denver Law) has posted “The Incompatibility of Artificial Intelligence and Citizens United” (Ohio State Law Journal, Vol. 83, No. 6, pp. 1211-1273, 2022) on SSRN. Here is the abstract:

In Citizens United v. FEC, the Supreme Court granted corporations essentially the same political speech rights as human beings. But does the growing prevalence of artificial intelligence (“AI”) in directing the content and dissemination of political communications call into question the jurisprudential soundness of such a commitment? Would continuing to construe the corporation as a constitutional rights bearer make much sense if AI entities could wholly own and operate business entities without any human oversight? Those questions seem particularly important, because in the new era of AI, the nature and practices of the modern corporation are quickly evolving. The magnitude of that evolution will undoubtedly affect some of the most important aspects of our shared social, economic, and political lives. To the extent our conception of the corporation changes fundamentally in the AI era, it seems essential to assess the enduring soundness of prior jurisprudential commitments regarding corporate rights that might no longer seem compatible with sustaining our democratic values. The dramatic and swift evolution of corporate practices in the age of AI provides a clarion call for revisiting the jurisprudential sensibility of imbuing corporations with full constitutional personhood in general and robust political speech rights in particular. For if corporations can use AI data mining and predictive analytics to manipulate political preferences and election outcomes for greater profits, the basic viability and legitimacy of our democratic processes hang in the balance. Moreover, if AI technology itself plays an increasingly important, if not controlling, role in determining the content of corporate political communication, granting corporations the same political speech rights as humans effectively surrenders the political realm to algorithmic entities. In the end, although AI could help corporations act more humanely, the very notion of a corporation heavily influenced or controlled by non-human entities creates the need to cabin at least somewhat the commitment to corporations as full constitutional rights bearers. In particular, with respect to corporate political activity, the growing prevalence of AI in managerial (and possibly ownership) positions makes granting corporations the same political speech rights as humans incompatible with maintaining human sovereignty.