Private online platforms have an increasingly essential role in free speech and participation in democratic culture. But while it might appear that any Internet user can publish freely and instantly online, many platforms actively curate the content posted by their users. How and why these platforms operate to moderate speech is largely opaque.
This Article provides the first analysis of what these platforms are actually doing to moderate online speech under a regulatory and First Amendment framework. Drawing from original interviews, archived materials, and leaked documents, this Article not only describes how three major online platforms—Facebook, Twitter, and YouTube—moderate content, it situates their moderation systems into a broader discussion of online governance and the evolution of free expression values in the private sphere. It reveals that private content moderation systems curate user content with an eye to First Amendment norms, corporate responsibility, and at the core, the economic necessity of creating an environment that reflects the expectations of its users. In order to accomplish this, platforms have developed a detailed system with similarities to the American legal system with regularly revised rules, trained human decision-making, and reliance on a system of external influence.
This Article argues that to best understand online speech, we must abandon traditional doctrinal and regulatory analogies, and understand these private content platforms as systems of governance operating outside the boundaries of the First Amendment. These platforms shape and allow participation in our new digital and democratic culture. They are the New Governors of online speech.
Social Media and Jury Selection
The article below provides a good overview of how different jurisdictions address the issue of attorneys using social media to investigate jurors. I have written on the topic extensively here and here. However, if you want a quick snapshot of the current state of the law on social media and jury selection read this article.
Disciplining Public Employees for Social Media Content
The article below discusses the First Amendment challenges that arise when taking action against public employees for the content they post on social media.
ABAJournal.com: Public Employees, Private Speech: 1st Amendment doesn’t always protect government workers
Below is an article I wrote a while back discussing how just one feature of a social media platform can have a significant impact on the law.
Broadcasting an Online Crime: Should it Be Criminal?
Here is an interesting article from CNN that discusses the possibility of enhanced penalties for broadcasting an online crime.
Social Media Policies for Law Enforcement
Here is another story about a police officer challenging the constitutionality of his department’s social media policy.
Apple’s 2016 fight against a court order commanding it to help the FBI unlock the iPhone of one of the San Bernardino terrorists exemplifies how central the question of regulating government surveillance has become in American politics and law. But scholarly attempts to answer this question have suffered from a serious omission: scholars have ignored how government surveillance is checked by “surveillance intermediaries,” the companies like Apple, Google, and Facebook that dominate digital communications and data storage, and on whose cooperation government surveillance relies. This Article fills this gap in the scholarly literature, providing the first comprehensive analysis of how surveillance intermediaries constrain the surveillance executive. In so doing, it enhances our conceptual understanding of, and thus our ability to improve, the institutional design of government surveillance.
Surveillance intermediaries have the financial and ideological incentives to resist government requests for user data. Their techniques of resistance are: proceduralism and litigiousness that reject voluntary cooperation in favor of minimal compliance and aggressive litigation; technological unilateralism that designs products and services to make surveillance harder; and policy mobilization that rallies legislative and public opinion to limit surveillance. Surveillance intermediaries also enhance the “surveillance separation of powers”; they make the surveillance executive more subject to inter-branch constraints from Congress and the courts, and to intra-branch constraints from foreign-relations and economics agencies as well as the surveillance executive’s own surveillance-limiting components.
The normative implications of this descriptive account are important and cross-cutting. Surveillance intermediaries can both improve and worsen the “surveillance frontier”: the set of tradeoffs — between public safety, privacy, and economic growth — from which we choose surveillance policy. And while intermediaries enhance surveillance self-government when they mobilize public opinion and strengthen the surveillance separation of powers, they undermine it when their unilateral technological changes prevent the government from exercising its lawful surveillance authorities.