Technology, Listeners, and the First Amendment

Empowered by the ability to collect and aggregate information about users and then to tailor messages designed to shape those users? responses, today’s digital technologies can facilitate manipulation unprecedented in its reach and success. I draw from ethicists? insights to explain how manipulation and especially online manipulation can inflict harms distinct from those imposed by coercion and deception, and to explain why addressing these distinct harms is a government interest sufficiently strong to justify appropriately-tailored interventions. I then explore how these conceptual tools can also help us understand when, how, and why government can regulate online manipulation consistent with the First Amendment. First Amendment law sometimes permits the government to protect comparatively vulnerable listeners from comparatively powerful speakers? false or misleading speech, nondisclosures, or coercive speech. Think, for example, of the government’s requirements that commercial actors provide accurate disclosures about their products like laws requiring cigarette manufacturers to post warnings about the dangers of tobacco on cigarette packages and advertisements, and laws requiring lenders to disclose the terms and costs of their services in standardized form to facilitate comparison-shopping. In other words, differences in power and information sometimes matter to First Amendment law, permitting the government’s interventions to protect comparatively vulnerable listeners. The same can and should be true of efforts to regulate manipulative speech here, and we can understand the First Amendment to permit the government to intervene to protect listeners from speakers? manipulative efforts in certain settings.