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The 25th AnnualFordham Intellectual Property, Media and Entertainment Law Journal Symposium CLE Course Materials 9 February 2018 Fordham University 9 – 3:30 p.m. | program McNally Ampitheatre 140 West 62nd Street Table of Contents CLE Materials Panel 1 Safeguarding Information Integrity in the Era of Fake News Panel 2 European Union Comparative Law Panel 3 Political Non-Neutrality in the Press THE NEW GOVERNORS: THE PEOPLE, RULES, AND PROCESSES GOVERNING ONLINE SPEECH Kate Klonick* *Ph.D Candidate in Law, Yale University, and Resident Fellow at the Information Society at Yale Law School. Research for this project was made possible with the generous support of the Oscar M. Ruebhausen Fund. The author is grateful to Jack Balkin, Molly Brady, Kiel Brennan-Marquez, Peter Byrne, Adrian Chen, Bryan Choi, Danielle Keats Citron, Rebecca Crootof, Evelyn Frazee, Brad Greenberg, Tarleton Gillespie, James Grimmelmann, Alexandra Gutierrez, Woody Hartzog, Gus Hurwitz, Thomas Kadri, Margot Kaminski, Alyssa King, Jonathan Manes, Toni Massaro, Christina Mulligan, Frank Pasquale, Robert Post, Jeff Rosen, Andrew Selbst, Jon Shea, Rebecca Tushnet, and Tom Tyler for helpful thoughts and comments on earlier versions of this article. A special thank you to Rory Van Loo, whose own paper workshop inadvertently inspired me to pursue this topic. Elizabeth Goldberg and Deborah Won provided invaluable and brilliant work as research assistants. 2 DRAFT: KLONICK – NEW GOVERNORS [October 2017] DO NOT DISTRIBUTE 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 internal 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 American free speech 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 rooted in 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. These platforms are now responsible for shaping and allowing participation in our new digital and democratic culture, yet they have little direct accountability to their users. Future intervention, if any, must take into account how and why these New Governors regulate online speech in order to strike a balance between preserving the democratizing forces of the Internet and the generative power of our New Governors. TABLE OF CONTENTS INTRODUCTION .............................................................................................................. 4 I. SECTION 230, THE FIRST AMENDMENT, AND THE BEGINNINGS OF INTERMEDIARY SELF- REGULATION .................................................................................................................. 8 A. History and Development of Section 230 ...................................................... 8 B. First Amendment Implications ..................................................................... 15 C. Internet Pessimists, Optimists, and Realists ................................................. 19 II. WHY GOVERN WELL? THE ROLE OF FREE SPEECH NORMS, CORPORATE CULTURE, AND ECONOMIC INCENTIVES IN THE DEVELOPMENT OF CONTENT MODERATION ................... 22 A. Platforms’ baseline in free speech ................................................................ 24 3 DRAFT: KLONICK – NEW GOVERNORS [October 2017] DO NOT DISTRIBUTE 1. Free Speech Norms ..................................................................................... 25 2. Government Request and Collateral Censorship Concerns ..................... 29 B. Why moderate at all? .................................................................................... 33 1. Corporate Responsibility and Identity ...................................................... 33 2. Economic reasons ...................................................................................... 34 III. HOW ARE PLATFORMS GOVERNING? THE RULES, PROCESS, AND REVISION OF CONTENT MODERATION SYSTEMS ................................................................................ 38 A. Development of Moderation: From Standards to Rules ............................. 38 B. How the Rules Are Enforced: Trained Human Decision-Making .............. 43 1. Ex Ante Content Moderation ..................................................................... 44 2. Ex Post Proactive Manual Content Moderation ....................................... 46 3. Ex Post Reactive Manual Content Moderation .......................................... 47 i. Who Enforces the Rules? ...................................................................... 48 ii. How Are the Rules Enforced? ............................................................... 51 a. Training .............................................................................................. 51 b. Similarities to American Law and Legal Reasoning ......................... 53 4. Decisions, Escalations, and Appeals .......................................................... 57 C. System Revision and the Pluralistic System of Influence ............................ 59 1. Government requests ................................................................................. 60 2. Media coverage .......................................................................................... 63 3. Third-party influences ............................................................................... 66 4. Change through process ............................................................................ 68 D. Within Categories of the First Amendment ................................................. 69 IV. THE NEW GOVERNORS ............................................................................................ 73 A. Equal Access ................................................................................................... 76 B. Accountability ............................................................................................... 78 CONCLUSION ................................................................................................................. 81 4 DRAFT: KLONICK – NEW GOVERNORS [October 2017] DO NOT DISTRIBUTE INTRODUCTION In a lot of ways Facebook is more like a government than a traditional company. We have this large community of people, and more than other technology companies we’re really setting policies. -Mark Zuckerberg1 In the Summer of 2016, two historic events occurred almost simultaneously: a bystander captured the police shooting of Alton Sterling on cell phone video, and another recorded the aftermath of the police shooting of Philando Castile, and streamed the footage via Facebook Live.2 Following the deaths of Castile and Sterling, Facebook founder and CEO Mark Zuckerberg stated that the ability to instantly post a video like the one of Castile dying “reminds us why coming together to build a more open and connected world is so important.” 3 President Barack Obama issued a statement saying the shootings were “symptomatic of the broader challenges within our criminal justice system”4 and the Department of Justice opened an investigation into Sterling’s shooting and announced it would monitor the Castile investigation.5 Multiple protests took place across the country.6 The impact of these videos is an incredible example of how online platforms 1 DAVID KIRKPATRICK, THE FACEBOOK EFFECT: THE REAL INSIDE STORY OF MARK ZUCKERBERG AND THE WORLD’S FASTEST GROWING COMPANY (2011). 2Richard Fausset, Richard Pérez-Peña & Campbell Robertson, U.S. Examines Police Killing in Louisiana, N.Y. TIMES, Jul. 6, 2016, at A1; Matt Furber & Richard Pérez-Peña, 11 Officers Shot, 4 Fatally, at Rally Against Violence, N.Y. TIMES, Jul. 7, 2016, at A1. 3 Mark Zuckerberg, FACEBOOK (Jul. 7, 2016), www.facebook.com/zuck/posts/10102948714100101. 4 Press Release, The White House, President Obama on the Fatal Shootings of Alton Sterling and Philando Castile (Jul. 7, 2016) https://www.whitehouse.gov/blog/2016/07/07/president-obama-fatal-shootings-alton- sterling-and-philando-castile. 5 Press Release, The U.S. Dept. of Justice, Att’y Gen. Loretta E. Lynch Delivers Statement on Dallas Shooting (Jul. 8, 2016) https://www.justice.gov/opa/speech/attorney-general- loretta-e-lynch-delivers-statement-dallas-shooting. 6 Mitch Smith, Christina Capecchi, and Matt Furber, Peaceful Protests in Minnesota Follow Call for Calm, N.Y. TIMES, Jul. 9, 2016, at A14; Liz Sawyer, Protest results in brief closure of State Fair’s main gate, STAR TRIB. (Sept. 3, 2016 at 9:38 PM)
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