Free Speech in the Algorithmic Society: Big Data, Private Governance, and New School Speech Regulation

Privacy and Security, Networks, the Internet, and Cloud Computing and Media and Content

Article Snapshot


Jack M. Balkin


University of California Davis Law Review, Vol 51, pp. 1149-1210 (2018)


Traditional free speech doctrines protect speakers from state censorship. The rise of big data, algorithmic decision-making, and digital media companies alters the nature of free speech concerns.

Policy Relevance

Governments still threaten free speech. However, courts should not stop policymakers from regulating digital media companies.

Main Points

  • First Amendment rights of free speech retain their key purpose of guarding speakers against state censorship; however, courts should not interpret the First Amendment to prevent the state from regulating digital media companies.
  • Fiduciary relationships arise when a client cannot easily monitor the fiduciary, and the client must rely on the fiduciary to perform a valuable service.
    • Doctors are fiduciaries, and must act in good faith towards patients.
    • Internet Service Providers, search engines, and social media platforms should be information fiduciaries, required to protect users’ personal information and interests.
  • Digital infrastructure providers use contracts and computer code to control information flows and user behavior, creating digital communities with enforceable norms, a system of private governance.
  • Nation-states may control entire digital communities by regulating digital service providers.
  • Traditionally, free speech issues involved the state on the one hand, and speakers and publishers on the other (a dyadic model); today, governments, firms that operate digital infrastructure, and speakers who use digital platforms are involved when free speech issues arise (a pluralistic model).
  • European authorities require search engines such as Google to delink from embarrassing newspaper articles, the “right to be forgotten.”
    • The state targets the search engine for regulation instead of the newspapers.
    • Government can co-opt mechanisms of private governance to censor and control data.
  • The Internet is dominated by the values of the United States, which disfavors censorship; however, if nation-states worldwide begin to filter, delink, and block global content, the Internet would be governed by the most censorious regime.
  • Large communications infrastructure owners and social media companies should reimagine themselves as a new kind of media company, obligated to preserve and protect free expression.

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