The Folklore of Informationalism: The Case of Search Engine Speech

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Fordham Law Review, Vol: 82, Issue: 4, Page: 1629

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Bracha, Oren
FLASH: The Fordham Law Archive of Scholarship and History
First Amendment; freedom of speech; search engine; search engine speech; informationalism
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Are search engine results protected speech under the First Amendment? This has become an essential question in the debate over search engine regulation. Search engine speech is at the cutting edge of several recent trends in First Amendment jurisprudence: the challenge of protection for machine–generated speech, a recent tendency toward constraining governmental economic regulatory power through aggressive and broad interpretation of freedom of speech, and the question of limitations on the coverage of the First Amendment. Arguments on behalf of First Amendment protection for search engine results focus on different protected speech interests. Free speech scrutiny is justified and necessary when it defends the speech interests of indexed content providers or users. But search engine speech proponents have gone further, arguing that search engines are protected either as editors or speakers themselves. These arguments are doctrinally uncertain and normatively baseless. Despite some possible support in recent U.S. Supreme Court decisions, the theory of First Amendment coverage on which these arguments rely is not firmly grounded in doctrine and its potentially far–reaching implications have not been considered. As a normative matter, the broad arguments for search engine speech stand on dubious foundations. A proper examination of the social practices of search engine speech reveals that none of the established normative theories of freedom of speech provide clear support for including such expression within the scope of the First Amendment. This normative conclusion can be accommodated and First Amendment protection to search engine speech can be denied by developing existing doctrinal tools.