Content Moderation Regulation as Legal Role-Scripting

Abstract

Lawmakers and scholars concerned with content moderation regulation typically appeal to "analogies" to justify or undermine differentforms ofregulation. The logic goes: law should afford individuals due process rights against speech platforms because speech platforms are "like" speech governors as a matter of objective reality. Other common analogies include common carriers, publishers, distributors, shopping malls, and bookstores. Commentators attempt to invoke social roles to understand what the content moderation relationship is, what behaviors are "right" and "wrong" within it, and how law should police behavioral deviations. But they do so without relying on foundational sociology theory that explains what social roles are, what they do, and how they come to be. Without this theoretical foundation, the discourse incompletely portrays the project of content moderation regulation. Content moderation regulations do not simply "take" speech platforms' role as it currently exists they will also "make" speech platforms' role by expressing that speech platforms should be speech governors, common carriers, publishers, or something else, based on how lawmakers choose to regulate. This Article is the first to introduce role theory into the content moderation discourse. Content moderation regulations are poised to define the basic contours of what it means to be a "speech platform" because the role remains unsettled. Earlier, the Communications Decency Act failed to articulate coherent roles within the content moderation relationship. But current content moderation regulatory reforms including the PACT Act in Congress as well as state platform-common carriage laws and their judicial review have a renewed opportunity to script social roles for speech platforms and individuals. Foregrounding these reforms' role scripts directs attention to urgent questions about whether they are likely to produce a desirable content moderation relationship and an online speech ecosystem that meets the public's needs.

Keywords: content moderation, free speech, online platforms, platform governance, internet law, cyberlaw, law & society