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Governing the Global Public Square \\jciprod01\productn\H\HLI\62-1\HLI111.txt unknown Seq: 1 11-MAR-21 12:43 Volume 62, Number 1, Winter 2021 Governing the Global Public Square Rebecca J. Hamilton* Social media platforms are the public square of our era—a reality that has been entrenched by the widespread closure of physical public spaces in response to the COVID-19 pandemic. This online space is global in nature, with over 3.6 billion users worldwide, but its governance does not fall solely to govern- ments. With the rise of social media, important decisions about what content does—and does not—stay online are made by private technology companies. Reflecting this reality, cutting-edge scholarship has converged on a triadic approach to understanding how the global public square operates—with states, users, and technology companies marking out three points on a “free speech triangle” that determines what content appears online. While offering valuable insights into the nature of online speech regulation, this scholarship, which has influenced public discussion, has been limited by drawing primarily on a recurring set of case studies arising from the United States and the European Union. As a result, the free speech triangle has locked in assumptions that make sense for the United States and the E.U., but that regretta- bly lack broad applicability. This Article focuses our attention on the global public square that actually exists, rather than the narrow U.S.- and European-centric description that has commanded public attention. Drawing on inter- views with civil society, public sources, and technology company transparency data, it introduces a new set of case studies from the Global South, which elucidate important dynamics that are sidelined in the current content moderation discussion. Drawing on this broader set of materials, I supplement the free speech triangle’s analysis of who is responsible for online content, with the question of what these actors do. In this way, activity within the global public square can be grouped into four categories: content production, content amplification, rule creation, and enforcement. Analyzing the governance of the global public square through this functional approach preserves important insights from the existing literature while also creating space to incorporate the plurality of regulatory arrangements around the world. I close with prescriptive insights that this functional approach offers to policymakers in a period of unprecedented frustration with how the global public square is governed. Introduction More than 3.6 billion people across the globe regularly spend time on social media.1 Social media platforms are the new public square—and there is widespread discontent about what speech does and does not get to flow * Associate Professor of Law, American University, Washington College of Law. Heartfelt thanks to Janea Marks and Angela Gerrits for research assistance, and to the HILJ editors for their dedication to the editing process, notwithstanding the impact of COVID-19, and for their deft work to help me incorpo- rate the new developments that kept unfolding daily as this Article was set to go to print. I am grateful to Hannah Bloch-Wehba, Gabriella Blum, Pamela Bookman, Jay Butler, Julie Cohen, Danielle Citron, Jennifer Daskal, Evelyn Douek, Matthew Erie, Claudia Haupt, Andrew Ferguson, Susan Franck, Maggie Gardner, Rebecca Ingber, Daphne Keller, Molly Land, Martha Minow, David Pozen, Barrie Sander, and David Sloss for comments on earlier versions. All errors are my own. 1. Number of Social Media Users Worldwide, Statista, https://www.statista.com/statistics/278414/num- ber-of-worldwide-social-network-users/ [https://perma.cc/4D7B-UAU2] (last visited July 15, 2020). \\jciprod01\productn\H\HLI\62-1\HLI111.txt unknown Seq: 2 11-MAR-21 12:43 118 Harvard International Law Journal / Vol. 62 freely within it.2 In the United States, members of Congress have questioned the role of Facebook in facilitating Russian interference in the 2016 presi- dential election.3 President Trump accused various platforms of political bias, claiming that they interfered with his re-election campaign, and en- gaged in voter suppression.4 In the wake of recent protests for racial justice, activists have started to call for new “rules of engagement” around sharing the videos and images of the deaths of Black Americans.5 Looking abroad, in Syria, lawyers have been frustrated that YouTube has removed videos that could serve as evidence in war crimes prosecutions.6 In Brussels, lawmakers have chastised Twitter for being too slow to remove hate speech.7 In Myanmar, human rights leaders have asked why Facebook 2. As Danielle Citron and Neil Richards argued so convincingly in a 2018 article, social media plat- forms do not function as an open democratic forum in the way that U.S. audiences, at least, have tradi- tionally thought of a “public square.” See Danielle K. Citron & Neil M. Richards, Four Principles for Digital Expression, 95 Wash. U. L. Rev. 1353, 1356 (2018) (“[Private companies] block, filter, mute, and decrease the visibility of online expression, making it difficult for some to engage in public dis- course.”). And, of course, they are part of an internet ecosystem that is also so much more than a mere public square. Id. at 1355. 3. Facebook Boss Mark Zuckerberg Tells Congress the Company is in an “Arms Race” with Russia, ABC News (Apr. 11, 2018, 4:21 PM), https://www.abc.net.au/news/2018-04-11/facebook-boss-mark-zuckerberg- fronts-united-states-congress/9639764 [https://perma.cc/6DJH-YSS8]. 4. See, e.g., Exec. Order No. 13,925, 85 Fed. Reg. 34,079 (June 2, 2020); President Donald J. Trump, Facebook (Nov. 6, 2020, 5:51) (“Twitter is out of control, made possible through the government gift of Section 230!”); Davey Alba et al., Twitter Adds Warnings to Trump and White House Tweets, Fueling Tensions, N.Y. Times (June 3, 2020), https://www.nytimes.com/2020/05/29/technology/trump-twitter- minneapolis-george-floyd.html [https://perma.cc/53J8-M5PR]; Cat Zakrzewski, The Technology 202: Trump Escalates His War with Twitter . on Twitter, Wash. Post (May 27, 2020), https://www.washing- tonpost.com/news/powerpost/paloma/the-technology-202/2020/05/27/the-technology-202-trump-esca- lates-his-war-with-twitter-on-twitter/5ecd56e7602ff165d3e417fc [https://perma.cc/65TY-M8WA]; Tony Romm & Elizabeth Dwoskin, Trump Signs Order That Could Punish Social Media Companies for How They Police Content, Drawing Criticism and Doubts of Legality, Wash. Post (May 28, 2020, 9:48 AM), https://www.washingtonpost.com/technology/2020/05/28/trump-social-media-executive-order/ [https:// perma.cc/U8GB-L87G]; Cat Zakrzewski, The Technology 202: Snap’s Decision Could Have Implications for Trump’s Young Voter Outreach, Wash. Post (June 4, 2020, 9:05 AM), https://www.washingtonpost.com/ news/powerpost/paloma/the-technology-202/2020/06/04/the-technology-202-snap-s-decision-could-have -implications-for-trump-s-young-voter-outreach/5ed7dd6288e0fa32f82315d1 [https://perma.cc/W5MB- UB56]. 5. Melanye Price, Opinion, Please Stop Showing the Video of George Floyd’s Death, N.Y. Times (June 3, 2020), https://www.nytimes.com/2020/06/03/opinion/george-floyd-video-social-media.html [https://per ma.cc/3UUP-RFEQ]; Craig Timberg, Zuckerberg Acknowledges Facebook Erred by Not Removing a Post that Urged Armed Action in Kenosha, Wash. Post (Aug. 28, 2020, 4:58 PM), https://www.washington post.com/technology/2020/08/28/facebook-kenosha-militia-page/ [https://perma.cc/2TKV-K9M7] (ex- plaining the context of the Facebook CEO’s admission in an internal meeting that despite the event garnering many user complaints it remained until after two protesters were shot); see also Rachel Lerman, YouTube Is Starting to Age-Restrict News Videos of George Floyd’s Killing, Wash. Post (June 4, 2020, 4:53 PM), https://www.washingtonpost.com/technology/2020/06/04/youtube-restricts-floyd-videos [https:// perma.cc/6VZA-YZBA] (explaining that YouTube recently began displaying age-appropriateness warn- ings on videos of the killing of George Floyd). 6. Bernhard Warner, Tech Companies Are Deleting Evidence of War Crimes, Atlantic (May 8, 2019), https://www.theatlantic.com/ideas/archive/2019/05/facebook-algorithms-are-making-it-harder/588931/ [https://perma.cc/HAW4-3ZUH]. 7. Mark Scott, Twitter Fails E.U. Standard on Removing Hate Speech Online, N.Y. Times (May 31, 2017), https://www.nytimes.com/2017/05/31/technology/twitter-facebook-google-europe-hate-speech.html [https://perma.cc/W8ML-7SCD]. \\jciprod01\productn\H\HLI\62-1\HLI111.txt unknown Seq: 3 11-MAR-21 12:43 2021 / Governing the Global Public Square 119 has allowed speech that incites violence to remain online, enabling atrocities to flourish.8 In the face of society-wide “lockdowns” in response to the COVID-19 pandemic, such criticisms of social media platforms gain further salience; the spaces these platforms create and curate currently constitute not only a new public square, but de facto the only public square in many locales world- wide. Even during the wave of international protests in the physical public square in the wake of the George Floyd murder and reinvigoration of the Black Lives Matter movement, the online public square has continued to serve as a place of organization and activism for those unable to join the physical protests.9 It is also, however, a place for conspiracy theorists to gain adherents and for false claims to go viral.10 In response, platforms are devel- oping new content moderation guidelines, such as removing and banning specific conspiracy theories, adding fact-check labels to politicians’ posts, disabling accounts that incite violence, and collaborating with and prioritiz- ing posts of various public health agencies.11 8. Letter from Six Civil Society Groups in Myanmar to Mark Zuckerberg, Chief Exec.
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