The Future of Freedom of Expression Online

Should social media companies ban Holocaust denial from their platforms? What about conspiracy theorists that spew hate? Does good corporate citizenship mean platforms should remove offensive speech or tolerate it? The content moderation rules that companies develop to govern speech on their platforms will have significant implications for the future of freedom of expression. Given that the prospects for compelling platforms to respect users’ free speech rights are bleak within the U.S. system, what can be done to protect this important right? In June 2018, the United Nations’ top expert for freedom of expression called on companies to align their speech codes with standards embodied in international human rights law, particularly the International Covenant on Civil and Political Rights (ICCPR). After the controversy over de-platforming Alex Jones in August 2018, Twitter’s CEO agreed that his company should root its values in international human rights law and Facebook referenced this body of law in discussing its content moderation policies. This is the first article to explore what companies would need to do to align the substantive restrictions in their speech codes with Article 19 of the ICCPR, which is the key international standard for protecting freedom of expression. In order to examine this issue in a concrete way, this Article assesses whether Twitter’s hate speech rules would need to be modified. This Article also evaluates potential benefits of and concerns with aligning corporate speech codes with this international standard. This Article concludes it would be both feasible and desirable for companies to ground their speech codes in this standard; however, further multi-stakeholder discussions would be helpful to clarify certain issues that arise in translating international human rights law into a corporate context

To Protect Freedom of Expression, Why Not Steal Victory from the Jaws of Defeat?

Global social media platforms are grappling with whether to align their corporate speech codes with international human rights law. Facebook’s June 2019 report that summarized worldwide feedback about its proposed independent oversight board for content moderation noted a split in stakeholder opinions on this topic. The UN’s top expert on freedom of expression as well as many civil society members recommended that Facebook anchor its content moderation in the international human rights law regime. Others expressed concern that this legal regime would not be sufficiently protective of speech and contained inconsistencies that create problems for content moderation. Those concerns were linked to a recent scholarly call for updates to the UN’s international legal regime regarding freedom of expression, particularly with respect to the International Covenant on Civil and Political Rights and the Convention on the Elimination of All Forms of Racial Discrimination. This Article examines the scholarly call’s analysis to assess whether its conclusions are correct, which would make this body of law less useful for platforms to adopt in content moderation. This Article finds that the state of international law on freedom of expression is more protective of speech (and more coherent) than the scholars assessed and proposes ways to achieve their laudable goal of promoting broad protections for freedom of expression in international law. The Article concludes that the existing international legal regime on freedom of expression remains a useful resource for content moderation by global platforms

In a World of “Fake News,” What’s a Social Media Platform to do?

While the circulation of disinformation and misinformation online can pose a variety of risks to societies around the world, it should also be of concern that overreacting to such false information can undermine human rights, including freedom of expression. The business operations of global social media platforms frequently intersect with this latter concern because of a spike in the adoption of national laws that ban “fake news” as well as their own platform policies to tackle false information. This Essay assesses the corporate responsibility standards afforded by the United Nations’ Guiding Principles on Business & Human Rights as well as the International Covenant on Civil and Political Rights and explains several key ways in which the guidance that these instruments provide is relevant to social media companies in tackling false information on their platforms

Losing the Freedom to Be Human

In 2019, Apple’s CEO warned that contemporary business models, which are based on harvesting our personal data and monetizing everything we do online, violate our privacy and will eventually cause us “to lose the freedom to be human.” Others have taken this privacy concern a step further by questioning whether these business models undermine mental autonomy, i.e., the ability to think and form opinions. The burgeoning chorus of concerns has triggered a variety of high-profile calls to explore whether international human rights law protects against intrusions on the inner sanctum of one’s mind, particularly with respect to the business models of global platforms such as Amazon, Facebook, and Google. This Article provides the first in-depth scholarly examination of the scope of the right to “hold opinions without interference,” which is enshrined in Article 19(1) of the International Covenant on Civil and Political Rights (ICCPR). Because it was generally assumed that this right to think and form opinions could not be violated, it has been overlooked to date, and there is little jurisprudence available to define its scope. In response to calls for scholarly engagement to help define this right, this Article examines the text of the ICCPR, its negotiating history, the works of respected jurists, and the views of the United Nations human rights machinery. The Article concludes that the right to hold opinions without interference includes protection against disclosure of one’s opinions, manipulation in the forming and holding of opinions, and penalization for one’s opinions. The Article assesses how contemporary business models grounded in capturing our attention, harvesting our personal information, and then monetizing that information may infringe this right. Using the corporate responsibility framework embodied in the U.N. Guiding Principles on Business and Human Rights, the Article concludes by recommending paths forward to promote respect for the right to hold opinions without interference in the digital age

Taking Exception to Assessments of American Exceptionalism: Why the United States Isn’t Such an Outlier on Free Speech

One of the most significant challenges to human freedom in the digital age involves the sheer power of private companies over speech and the fact that power is untethered to existing free speech principles. Heated debates are ongoing about what standards social media companies should adopt to regulate speech on their platforms. Some have argued that global social media companies, such as Facebook and Twitter, should align their speech codes with the international human rights law standards of the United Nations (“U.N.”). Others have countered that U.S.-based companies should apply First Amendment standards. Much of this debate is premised on a fundamental misunderstanding about the scope of freedom of expression protections under U.N. standards. This Article addresses that pervasive misunderstanding by engaging in a detailed comparison of key doctrines underlying both bodies of law. The Article provides the first in-depth comparison of U.S. and U.N. standards on freedom of expression since the U.N. human rights machinery adopted pivotal interpretations of this human right a decade ago. The Article finds that both standards provide a principled and disciplined approach to speech restrictions by creating a presumption in favor of speech, prohibiting unduly vague and overbroad speech restrictions, mandating that only narrowly tailored burdens on speech be authorized, and requiring that any restrictions serve important public interest objectives. While this Article does not argue that the two bodies of law completely converge, it does maintain that the key doctrines they share should inform—and perhaps transform—the ongoing debate about what standards social media companies should use in curating content on their platforms. U.N. standards are more protective of speech than is generally understood to be the case and provide a framework that can be translated to the context of private sector content moderation

Taking Exception to Assessments of American Exceptionalism: Why the United States Isn’t Such an Outlier on Free Speech

One of the most significant challenges to human freedom in the digital age involves the sheer power of private companies over speech and the fact that power is untethered to existing free speech principles. Heated debates are ongoing about what standards social media companies should adopt to regulate speech on their platforms. Some have argued that global social media companies, such as Facebook and Twitter, should align their speech codes with the international human rights law standards of the United Nations (“U.N.”). Others have countered that U.S.-based companies should apply First Amendment standards. Much of this debate is premised on a fundamental misunderstanding about the scope of freedom of expression protections under U.N. standards. This Article addresses that pervasive misunderstanding by engaging in a detailed comparison of key doctrines underlying both bodies of law. The Article provides the first in-depth comparison of U.S. and U.N. standards on freedom of expression since the U.N. human rights machinery adopted pivotal interpretations of this human right a decade ago. The Article finds that both standards provide a principled and disciplined approach to speech restrictions by creating a presumption in favor of speech, prohibiting unduly vague and overbroad speech restrictions, mandating that only narrowly tailored burdens on speech be authorized, and requiring that any restrictions serve important public interest objectives. While this Article does not argue that the two bodies of law completely converge, it does maintain that the key doctrines they share should inform—and perhaps transform—the ongoing debate about what standards social media companies should use in curating content on their platforms. U.N. standards are more protective of speech than is generally understood to be the case and provide a framework that can be translated to the context of private sector content moderation