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The New Governors: The People, Rules, and Processes Governing Online Speech

82 Pages Posted: 21 Mar 2017 Last revised: 17 Oct 2017

Kate Klonick

Yale University, Law School, Students

Date Written: March 20, 2017

Abstract

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.

Keywords: online speech, private platforms, internet platforms, internet intermediaries

Suggested Citation

Klonick, Kate, The New Governors: The People, Rules, and Processes Governing Online Speech (March 20, 2017). Harvard Law Review, Vol. 131, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2937985

Kate Klonick (Contact Author)

Yale University, Law School, Students ( email )

127 Wall St
New Haven, CT 06511

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