Expert Governance of Online Speech

Abstract

In a world of fundamental disagreements about how social media companies should govern speech, it is striking that nearly everyone agrees that online speech governance should be based on human rights. The human rights project for content moderation proposes that social media platforms align their own internal speech policies with international human rights law (IHRL). It seeks, I argue, a system of expert governance: one in which a corporate technocracy applies a set of exogenous principles imagined as objective and global. Ultimately, this governance model shifts power to experts under the illusion of empowering the people.

To support these claims, this Article unveils the intellectual work that scholars, U.N. bodies, and the Facebook Oversight Board are doing to portray IHRL as an objective synthesis of the global public interest. The Article analyzes how they have recreated several dimensions of international law. A salient example is their new reading of the U.N. Guiding Principles on Business and Human Rights. According to a recent interpretation, companies are expected to align their content policies with international law. But this interpretation widely diverges from the text and the original meaning of the instrument. The Article also examines other tools the project uses such as creating boundaries between local facts and normative work and framing normative questions as technical challenges. Overall, the Article provides a deep dive into the toolkit that scholars, advocates, and the Facebook Oversight Board have developed to date to pursue a system of expert governance of online speech.