Vol. 25 - Issue 2

Digital networked society needs friction-in-design regulation that targets the digital architectures, supposedly smart (data-driven, algorithmic) systems, and interfaces that shape human interactions, behavior, and will (beliefs, preferences, values, intentions). The relentless push to eliminate friction for the sake of efficiency has hidden social costs that affect basic human capabilities and society. A general course correction is needed. Friction in the digital networked environment can come in many forms. It can be as simple as a time delay prior to publishing a social media post, a notice that provides salient information coupled with a nudge toward actual deliberation, or a query that tests comprehension about important consequences that flow from an action–for example, when clicking a virtual button manifests consent to share information with strangers. We explore many examples using a simple descriptive framework that helps analysts compare and evaluate them. One major obstacle in the United States to almost any regulation of how private companies design digital networked technologies and govern social interactions online is the First Amendment and its rigorous protections for free speech. The First Amendment has so often been used to strike down government regulation of various forms of speech that it now has a powerful preemptive effect, which some have called First Amendment Lochnerism. We are most concerned with the foreclosure of regulatory imagination and thus consideration and exploration of new regulatory possibilities, such as friction-in-design regulation. In this article, we clear the First Amendment brush and reveal an open and mostly underappreciated regulatory territory to explore. We argue that friction-in-design regulation should be understood as Twenty-First century time, place, and manner restrictions, akin to laws that prohibit using megaphones in the middle of the night, require permits before marches, and prohibit adult theaters in residential neighborhoods. This does not mean that friction-in-design regulation would escape First Amendment scrutiny altogether, of course. But it would trigger intermediate rather than strict scrutiny, so long as the friction-in-design regulation remained content neutral. In other words, not all friction-in-design regulations would qualify as content neutral time, place, and manner restrictions. We discuss various examples. At the same time, we advance a novel governance theory that casts time, place, and manner restrictions as a useful regulatory model to bring online from the offline context and conventional First Amendment jurisprudence. Properly understood, designed and applied, time, place, and manner restrictions constitute a system for balancing individual freedom to communicate with the collective (state) interest in maintaining social order and peace, both offline and online.

The most pressing debates in antitrust today center on major platforms like Amazon, Google, and Facebook. Platform markets are subject to strong network effects, which tend to create barriers to entry and reinforce market power. Frequently, the only way for a new platform to enter the market successfully is to differentiate itself from the leading incumbent in some way—often by offering exclusive content or features. However, recently some dominant platforms have attempted to prevent this by entering into a novel type of “most favored nation” (MFN) agreement with trading partners. Unlike traditional MFNs, which restrain pricing, these MFNs prohibit trading partners from offering any exclusive content, features, or other services to smaller platforms. These new MFNs are the subject of numerous ongoing lawsuits and regulatory probes involving major platforms, including Amazon. But they have not previously been examined in academic research. This article evaluates the novel antitrust issues they raise. The primary concern is that these MFNs may allow a dominant platform to forestall competitive entry by restraining the ability of new platforms to differentiate themselves. This is consistent with research in economics indicating that exclusive dealing can help to facilitate entry in network industries. I discuss some key differences between these restraints and traditional price-based MFNs, and I identify some key errors in recent judicial decisions evaluating them.