Search Engines and Free Speech Coverage

This chapter investigates whether search engines and other new modes of online communication should be covered by free speech principles. It criticizes the analogical reasoning that contemporary American courts and scholars have used to liken search engines to newspapers, and to extend free speech coverage to them based on that likeness. There are dissimilarities between search engines and newspapers that undermine the key analogy, and also rival analogies that can be drawn which do not recommend free speech protection for search engines. Partly on these bases, we argue that an analogical approach to questions of free speech coverage is of limited use in this context. Credible verdicts about how free speech principles should apply to new modes of online communication require us to re-excavate the normative foundations of free speech. This method for deciding free speech coverage suggests that only a subset of search engine outputs and similar online communication should receive special protection against government regulation.