David McGowan (University of San Diego School of Law) has posted “The Internet and the Limping Truth” on SSRN. Here is the abstract:

Constitutional doctrine protects false speech and even lies in certain circumstances. The doctrine also endorses non-literal interpretation of speech that can cause statements implying factual assertions to be treated as non-factual, non-actionable opinion. These doctrines limit the degree to which laws may counteract falsity. Historically publishers exercised discretion, through ex ante review, that limited the dissemination of false statements, including those that would have been protected speech had they been published.

As the Internet has lowered the cost of disseminating expression, speech has been democratized radically. Many more people say many more things, many of them untrue. 47 U.S.C. Section 230(c)(1) provides that social media outlets are not publishers of user-generated content, thus immunizing such outlets from, for example, tort liability such as for defamation. Outlets’ terms of use typically grant them discretion to decline to post or to remove content. These outlets thus exercise ex post the sort of discretion formerly exercised ex ante by traditional media outlets.

Political dissatisfaction with the exercise of such discretion has led to calls to treat social media outlets either as state actors or common carriers. Neither option is desirable. Social media outlets do not satisfy the legal criteria for state action, and misguided claims that Section 230 gives them a subsidy provides no logical basis for treating them as state actors. Nor is common carrier treatment warranted. If the relevant market is publicly available expression, as critics seem to assert, then even the largest outlets have no plausible claim to market power. Normatively, to treat social media outlets as either state actors or common carriers would subject them to falsity-protecting constitutional rules and thus lead to a net increase in harmful conduct–lies, among other things. Public discourse would be better served by allowing media outlets to continue to refine their content moderation practices, as private speech outlets historically have done.

Chinmayi Arun (Yale Law School; Harvard University – Berkman Klein Center for Internet & Society) has posted “Facebook’s Faces” (Forthcoming Harvard Law Review Forum Volume 135) on SSRN. Here is the abstract:

The Facebook Oversight Board’s decision about the suspension of Donald Trump’s account is different from the Board’s other cases because it interests states. The ‘Trump Ban’ case affects the Board’s reputation and Facebook’s relationships with states and publics. We will not understand the case’s impact if we do not understand these relationships.

Scholarship about social media platforms discusses their relationship with states and users. The Essay is the first to expand this theorization to account for differences among states, the varying influence of different publics and the internal complexity of companies. Theorizing Facebook’s relationships this way includes less influential states and publics that are otherwise obscured. It reveals that Facebook engages with states and publics through multiple, parallel regulatory conversations, further complicated by the fact that Facebook itself is not a monolith. This Essay argues that Facebook has many faces – different teams working towards different goals, and engaging with different ministries, institutions, scholars and civil society organizations. Content moderation exists within this eco-system.

This Essay’s account of Facebook’s faces and relationships shows that less influential publics can influence the company through strategic alliances with strong publics or powerful states. It also suggests that Facebook’s carelessness with a seemingly weak state or a group, may affect its relationship with a strong public or state that cares about the outcome.

To be seen as independent and legitimate, the Oversight Board needs to show its willingness to curtail Facebook’s flexibility in its engagement with political leaders where there is a real risk of harm. This Essay hopes to show Facebook that the short-term retaliation from some states may be balanced out by the long-term reputational gains with powerful publics and powerful states who may appreciate its willingness to set profit-making goals aside to follow the Oversight Board’s recommendations.