Harvard Law Review, Forthcoming
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 leaked 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 First Amendment 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 with similarities to 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 operating outside the boundaries of the First Amendment. These platforms shape and allow participation in our new digital and democratic culture. They are the New Governors of online speech.