Customized Speech and the First Amendment

62 Pages Posted: 21 Oct 2021 Last revised: 10 Jan 2022

See all articles by Daniel Rauch

Daniel Rauch

Yale University - Law School

Date Written: October 1, 2021

Abstract

Customized Speech — speech targeted or tailored based on knowledge of one’s audience — is pervasive. It permeates our relationships, our culture, and, especially, our politics. Until recently, customization drew relatively little attention. Cambridge Analytica changed that. Since 2016, a consensus has decried Speech Customization as causing political manipulation, disunity, and destabilization. On this account, machine learning, social networks and Big Data make political Customized Speech a threat we constitutionally can, and normatively should, curtail.

That view is mistaken. In this Article, I offer the first systematic analysis of Customized Speech and the First Amendment. I reach two provocative results: Doctrinally, the First Amendment robustly protects Speech Customization. And normatively, even amidst Big Data, this protection can help society and democracy.

Doctrinally, the use of audience information to customize speech is, itself, core protected speech. Further, audience-information collection, while less protected, may still only be regulated by carefully drawn, content-neutral, generally applicable laws. And unless and until the state affirmatively enacts such laws (as, overwhelmingly, it has not), it may not curtail speakers’ otherwise-lawful use of such information in political Speech Customization.

What does this mean for democratic government? Today, Customized Speech raises fears about democratic discourse, hyper-partisan factions, and citizen autonomy. But these are less daunting than the consensus suggests, and are offset by key benefits: modern Customized Speech activates the apathetic, empowers the marginalized, and checks government overreach. Accordingly, many current proposals to restrict such Customized Speech — from disclosure requirements to outright bans — are neither constitutionally viable nor normatively required.

Keywords: Free Speech, Big Data, First Amendment, Facebook, Google, Twitter, Election Law, Campaign Finance, Data Privacy

Suggested Citation

Rauch, Daniel, Customized Speech and the First Amendment (October 1, 2021). Harvard Journal of Law & Technology, Vol. 35, 2022 Forthcoming, Available at SSRN: https://ssrn.com/abstract=3937435 or http://dx.doi.org/10.2139/ssrn.3937435

Daniel Rauch (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

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