I have posted a new draft essay, Listeners’ Choices Online. It is a sequel to my 2017 essay Listeners’ Choices, and like that piece it was written for a symposium on listeners’ interests. This one was hosted by the Southern California Law Review in November, and the final version will come out in the SCLR later this year. Here is the abstract:
The most useful way to think about online speech intermediaries is structurally: a platform’s First Amendment treatment should depend on the patterns of speaker-listener connections that it enables. For any given type of platform, the ideal regulatory regime is the one that gives listeners the most effective control over the speech that they receive.
In particular, we should distinguish four distinct functions that intermediaries can play. Broadcast, such as radio and television, transmits speech from one speaker to a large and undifferentiated group of listeners, who receive the speech automatically. Delivery, such as telephone, email, and broadband Internet, transmits speech from a single speaker to a single listener of the speaker’s choosing. Hosting, such as YouTube and Medium, allows an individual speaker to make their speech available to any listeners who seek it out. And selection, including search engines and feed recommendation algorithms, gives listeners suggestions about speech they might want to receive. Broadcast is relevant mostly as a (poor) historical analogue, but delivery, hosting, and selection are all fundamental on the Internet.
On the one hand, delivery and hosting intermediaries can sometimes be subject to access rules designed to give speakers the ability to use their platforms to reach listeners, because doing so gives listeners more choices among speech. On the other hand, access rules are somewhere between counterproductive and nonsensical when applied to selection intermediaries, because listeners rely on them precisely to make distinctions among competing speakers. Because speakers can use delivery media to target unwilling listeners, they can be subject to filtering rules designed to allow listeners to avoid unwanted speech. Hosting media, however mostly do not face the same problem, because listeners are already able to decide which content to request. Selection media, for their part, are what enable listeners to make these filtering decisions about speech for themselves.
Comments welcome!