Social Network as Work

Abstract

Social media has eluded regulation by taking refuge in the First Amendment. The First Amendment, scholars and lawmakers overwhelmingly argue, is a formidable obstacle to regulation because social media facilitates the creation and exchange of speech by users. The received wisdom, therefore, characterizes users as consumers of a speech-related service, which inevitably does raise thorny First Amendment problems. As a result, it appears the First Amendment bars solution to harms like discrimination, harassment, and misinformation on social media. But this is the wrong way to conceptualize social media, both descriptively and especially for purposes of the First Amendment.

This Article introduces a new labor paradigm for understanding and regulating social media. Existing paradigms overlook a powerful solution to regulating speech on social media consistent with the First Amendment by failing to recognize the labor relationship between platforms and their users. The relationship between platform and user is one of labor exchanged for profit, with users better analogized to workers as opposed to consumers. With each letter typed, post clicked, and page scrolled, social media users create massive, and massively profitable, proprietary catalogues of user data. In the process, platforms direct user input of data, compensate users with platform benefits, and then sell access to that data for enormous profit. All the while, users struggle with the same harms labor has endured for centuries: hostile and unsafe environments rife with harassment and misinformation. This labor-exchange relationship, with asymmetries in power akin to those between employers and workers, suggests relying on well-established labor and employment law frameworks for regulating speech on social media.

Reconceptualizing social media through the lens of labor—and reframing users as workers—offers the promise of a constitutional breakthrough. The First Amendment permits speech regulations on both employers and workers to protect worker safety, dignity, and autonomy in the workplace. The same should be true for users engaged in the work of creating data for platforms. Borrowing from analogous regulations on speech in the workplace, a regulatory regime for social media would include stricter antidiscrimination and anti-abuse rules, stronger enforcement mechanisms including vicarious platform liability, and more robust substantive and due process protections for users’ speech. It would include, in other words, the same sort of protections labor has long fought for. This labor paradigm ably and uniquely threads the First Amendment needle on protecting speech online while achieving foundational rights to user safety, dignity, and empowerment by recognizing that social media is not just a network. It’s work.

Keywords: First Amendment, Law & Tech, Platform Regulation, Labor Law, Employment Law