Search Engines and Free Speech: A Historical Analysis of Editorial Analogies and the Position of Media Companies and Users in US Free Speech Discourse

Abstract

This article analyzes current debates over search engine regulation and free speech. In these debates, Google and other companies have relied on the “editorial analogy”: that search results are equivalent to editorial decisions, and thus cannot be regulated without violating freedom of speech. These debates largely focus on analogies to earlier media or the nature of algorithmic judgment. The paper argues that this framing misses key issues relevant to how we think about search engines (and algorithmic decisions in general) and freedom of speech. The paper examines the free speech debates that surrounded media in the 1930s and 1940s in order to: (1) clarify the stakes and politics of the editorial analogy being used today; (2) offer an alternate framing of the debate, that highlights conflicts of expressive interest and asks what it means to participate in the public sphere under conditions of rapid technological and political economic transition.