William & Mary Bill of Rights Journal
Abstract
This Article examines new conceptual tools for understanding manipulation and its harms. More specifically, Part I draws from ethicists' insights to explain how 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.
Part II explores how these conceptual tools also help us understand when, how, and why government can regulate manipulation consistent with the First Amendment. As a threshold matter, note that manipulative online interfaces and related design choices may be better understood as conduct, rather than speech protected by the First Amendment. When we recall that the First Amendment fails to cover, much less protect, every use of language, one can plausibly understand the First Amendment's coverage to exclude data collection and the use of algorithms (that is, instructions to machines) because they do things rather than say things. This important possibility deserves attention and consideration. This Article, however, assumes arguendo that courts may characterize the sorts of manipulative practices discussed here as speech covered by the First Amendment, and then explores the constitutional implications of that assumption.
This abstract has been adapted from the author's introduction.