In this talk, Evelyn Douek argues that the stylized picture of content moderation that dominates academic, public and regulatory discourse needs reframing. In this picture, content moderation is a process in which social media platforms write legislative-style substantive rules and apply them in individual cases. This standard picture of content moderation is a striking analogue to offline judicial adjudication of speech rights and, as a result, leads regulators and scholars to assume that the best way to vindicate speech interests online is through the kind of ex post individual review provided by courts in First Amendment cases.
But this assumption is mistaken. The most important decisions about content moderation are ex ante and systemic. These decisions are made by a wide range of actors and institutions that determine how speech flows through platforms and they promote multiple goals of governance, not merely individual justice. To make content moderation as a whole accountable, and not merely a narrow slice of it, the standard picture needs to be expanded and online speech governance needs to be made more ex ante and systemic. This presentation outlines the standard picture of content moderation, what it misses, and how regulators should therefore borrow from the tools and principles of the administrative state instead when thinking about how to rein in platforms and resist the allure of First Amendment analogies.
Evelyn Douek is an S.J.D. candidate at Harvard Law School, Senior Research Fellow at the Knight First Amendment Institute at Columbia University, Affiliate at the Berkman Klein Center for Internet & Society and Visiting Fellow at the Yale Information Society Project at Yale Law School. She studies online speech regulation and platform governance. Before coming to Harvard to complete a Master of Laws, Evelyn clerked for the Chief Justice of the High Court of Australia, the Hon. Justice Susan Kiefel, and worked as a corporate litigator. She received her LL.B. from UNSW Sydney, where she was Executive Editor of the UNSW Law Journal.