Metodología

The goal of chapter 2 is to explore the relationship between digital intermediaries and the individual users who communicate via these intermediaries. Beginning the study here is crucial for developing a framework with which to analyze content governance.

The focus of this chapter will be on the nature of the so-called “networked economy”²² and the role that it plays in shaping the function of digital intermediaries as both

facilitators and regulators of the speech that individuals publish on their platforms. This chapter will also examine the position of state actors in this new communicative system, coming to the conclusion that all three actors in the system (individuals, intermediaries and state actors) are interdependent of one another within this system. This

interdependence is the defining characteristic of the current individual-driven and intermediary-facilitated speech environment.

To explicate how regulation of speech operates within this system of

interdependence, this chapter uses a theoretical framework that borrows from the field of Internet governance²³ and law professor Lawrence Lessig’s concepts of legal and

extralegal regulation.²⁴ Using this framework, this chapter takes the approach that the interdependent regulatory relationship among individuals, intermediaries and state actors is one whose definition is in constant flux.²⁵

The second half of the chapter is devoted to incorporating affirmative First Amendment theories into the analysis of how intermediaries facilitate speech. Such

22 See José van Dijck, Users like you? Theorizing agency in user-generated content, 31 MED.CULT.&

SOC’Y 41 (2009); Ute Schaedel & Michel Clement, Managing the Online Crowd: Motivations for Engagement in User-Generated Content, 7J.MED.BUS.STUD. 17 (2010); James G. Webster, User Information Regimes: How Social Media Shape Patterns of Consumption, 104 NW.U.L.REV. 593 (2010);

Ramon Lobato, Julian Thomas & Dan Hunter, Histories of User-Generated Content: Between Formal and Informal Media Economies, 5 INT’L J.COMM. 899 (2011).

23 See, e.g., DENARDIS, supra note 19; Malte Ziewitz and Christian Pentzold, In Search of Internet Governance: Performing Order in Digitally Networked Environments, 16 NEW MEDIA &SOC’Y 306,307 (2014);Michel JG van Eeten and Milton Mueller, Where Is the Governance in Internet Governance? 15 NEW MEDIA &SOC’Y 720,723(2013).

24 LAWRENCE LESSIG,CODE,VER.2.0 (2006).

25 See, e.g., TARLETON GILLESPIE,WIRED SHUT:COPYRIGHT AND THE SHAPE OF DIGITAL CULTURE

(2007).

theories are generally consequentialist in nature and conceive of freedom of expression as an affirmative right: a right to speak due to the benefit speech brings to society, rather than a right to not have the government restrict one’s speech.²⁶ These theories are valuable to the analysis in this chapter for two reasons. First, their essential focus on the social values of freedom of expression provides an analytical lens that portrays the role of intermediaries as facilitators of these values. Second, several versions of these theories view private actors that have great control over channels of speech as equally threatening to the robustness of the public discourse as state actors with the censorial power of law.²⁷ Thus, affirmative First Amendment theories have the ability to critically argue that the essential democratic function of intermediaries should be seen as more valuable or as a more important concern than intermediaries’ own rights as private businesses (or, at the very least, that these concerns are equally important).

Chapter 3: “The Value of Extreme Speech in a Networked Society: A Perspective from First Amendment Theory and Jurisprudence”

The purpose of this chapter is to analyze how key First Amendment theories and doctrines define the notions of extremeness and harmfulness in the context of freedom of expression, and ultimately apply these definitions to how freedom of expression is exercised in a global system of networked communication. This chapter begins with the foundational question posed by law professor Frederick Schauer: Why must speech be

26 See, e.g., ALEXANDER MEIKLEJOHN, FREE SPEECH AND ITS RELATION TO SELF-GOVERNMENT (1948);

CASS R.SUNSTEIN,DEMOCRACY AND THE PROBLEM OF FREE SPEECH (1993); OWEN FISS,THE IRONY OF

FREE SPEECH (1996).

27 See, e.g., Lessig, supra note 24; Jack M. Balkin, The Future of Free Expression in a Digital Age, 36 PEPP.L.REV. 438 (2009) [hereinafter Balkin, The Future of Free Expression]; Jack M. Balkin, Digital Speech and Democratic Culture: A Theory of Freedom of Speech for the Information Society, 79 N.Y.U. L.

REV. 1 (2004) [hereinafter Balkin, Digital Speech and Democratic Culture].

special?²⁸ In other words, why should this analysis pay so much attention to the potential effects of methods of Internet governance on speech (“content governance”) when methods of Internet governance affect many other phenomena and seek to uphold other important social values? Like Schauer, this chapter concludes that speech must be considered special because of the multiple values that come from the broad category of speech, values that require us to carefully analyze the potential harms that can be

experienced at the expense of these values.²⁹ I then proceed to an analysis of three of the most prominent First Amendment theories: marketplace of ideas theory, individual autonomy theory and tolerance theory.³⁰ Each of these theories, in its own way, answers the following questions: What makes speech harmful? What makes it so harmful that it should be regulated? How should that speech be regulated? At what point does regulation damage deliberative democracy? Answering these questions will help clarify the social values of extreme and potentially harmful speech.

Grasping clear definitions of harm is a task that calls for law professor Rodney Smolla’s three-part model of harmful speech, which identifies physical harm, relational harm, and reactive harm.³¹ These three classifications of harm are useful because they neatly categorize First Amendment doctrine. U.S. free speech jurisprudence considers physical harm the worst of the three types of harms, and certain tests have been devised to address this harm and to decide when the speech that causes it falls outside of

28 Frederick Schauer, Must Speech Be Special? 78 NW.U.L.REV. 1284 (1983).

29 Id. at 1304, 1306.

30 Another important First Amendment theory, self-governance theory, is not discussed in this chapter because it is part of chapter 2’s discussion of affirmative First Amendment theories. However, versions of self-governance theory will make an appearance in chapter 3 as perspectives for criticizing the three theories focused on in chapter 3.

31 RODNEY A.SMOLLA,FREE SPEECH IN AN OPEN SOCIETY 48 (1992).

constitutional protection. These types of speech include fighting words,³² true threats,³³ and incitement to imminent lawless action.³⁴ Relational harm involves speech that causes injury to social relationships (defamation), business relationships (fraud or false

advertising), ownership interests (copyright) and confidentiality (leaking national security secrets).³⁵ Courts have devised legal tests to determine if and how such speech should be legally sanctioned. Finally, reactive harms include intentional infliction of emotional distress of public officials,³⁶ and tortious invasions of privacy, as well as any type of hate speech. Hate speech has been defined many ways by many different scholars,³⁷ but a generic definition for the purposes of this study may categorize hate speech and any speech that attacks and attempts to subordinate any group or class of people, typically spoken by a group with a higher level of social power than the targets of the speech. The

32 Chaplinsky v. New Hampshire, 315 U.S. 568, 572-3 (1942) (defining unprotected fighting words as words said in another person’s face that “by their very utterance inflict injury or tend to incite an immediate breach of the peace”).

33 Virginia v. Black, 538 U.S. 343, 360 (2003) (O’Connor, J., writing for the plurality) (defining

unprotected true threats as speech that can be interpreted both objectively and subjectively as threatening).

34 Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (defining unprotected incitement as “advocacy of the use of force or of law violation [that] is directed to inciting or producing imminent lawless action and is likely to incite or produce such action”).

35 SMOLLA, supra note 31.

36 Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988).

37 For various studies with various definitions of hate speech, see generally Clay Calvert, Hate Speech and Its Harms: A Communication Theory Perspective, 47 J.COMM. 4 (1997); Alexander Tsesis, Dignity and Speech: The Regulation of Hate Speech in a Democracy. 44 WAKE FOREST L.REV. 497 (2009); Richard Delgado and David H. Yun, Pressure Valves and Bloodied Chickens: An Analysis of Paternalistic

Objections to Hate Speech Regulation, 82 CAL.L.REV. 871 (1994); Owen M. Fiss, The Supreme Court and the Problem of Hate Speech.24CAPITAL U.L.REV. 281 (1995); Stephanie Farrior, Molding the Matrix:

The Historical and Theoretical Foundations of International Law Concerning Hate Speech. 14 BERKELEY

J.INT’L L. 1 (1996); Jean-Marie Kamatali, The U.S. First Amendment Versus Freedom of Expression in Other Liberal Democracies and How Each Influenced the Development of International Law on Hate Speech. 36 OHIO N.U.L.REV.721(2010);Post, supra note 11; Tanya Katerí Hernández, Hate Speech and the Language of Racism in Latin America: A Lens for Reconsidering Global Hate Speech Restrictions and Legislation Models. 32 U. PA.J.INT'L L. 805 (2011).

targets of such speech typically include racial minorities, women, religious minorities, and homosexuals.

According to Smolla, speech that leads to reactive harms deserves the highest level of constitutional protection due to its tendency to implicate public figures or

officials, or its tendency to involve important social issues and matters of public concern:

factors which greatly outweigh the potential harms of the speech. However, although these types of speech receive strong legal protection, their harms are no less real to the people who suffer them. Content governance has the potential to fill the role of mitigating these harms.

In crafting a model of harmful speech that would trigger mechanisms of content governance, this study primarily focuses on speech with the potential to cause reactive harms and physical harms. It does not focus on speech that can cause relational harms, namely defamation. This decision was made for several reasons. First, except for certain torts of invasion of privacy, First Amendment jurisprudence has all but precluded private individuals from recovering damages for reactive harms caused by other individuals. This lack of legal options for mitigating reactive harms has created a vacuum that means of private governance are able to fill. Meanwhile, defamation remains a tort in which private individuals in the United States have viable options for recovery against their alleged defamers, thereby giving digital intermediaries little reason or incentive to mitigate defamatory claims on the behalf of individuals.

Second, physical harms are given greater attention in this study because they remain the most grievous type of harm regardless of which set of rules—First

Amendment jurisprudences or digital intermediaries’ community standards—is doing the judging. However, the high standards that First Amendment jurisprudence places in front of state actors who wish to punish speech for its potential to cause physical harms can create a governance vacuum that digital intermediaries are able to fill. For example, posts on Facebook that advocate violent uprising may, in fact, lead some people to violently rise up against government officials. Chapter 3 will outline the reasons why the

Brandenburg “imminent lawless action” standard likely would not find that such speech

violated the law of incitement. However, the at-least perceived connection between the online speech and the physical harm caused could lead digital intermediaries to step in and remove the speech from its platforms in an attempt to prevent any further harm.

The discussion in this section of chapter 3 is framed around the following

argument: tolerance theory, put forth by legal scholar Lee Bollinger in 1986,³⁸ should be revitalized as the preeminent theory of freedom of expression in a communication

environment in which content governance has become a common tool for controlling free expression. Bollinger contends that by allowing extreme and hurtful views to be put forth into our public discourse, we are actively fighting our natural proclivity to want to be intolerant of these viewpoints—or any viewpoint we oppose, for that matter.³⁹ Tolerance theory is the best fit for the analyses within this study for several reasons. First, while other theories engage in apologetics of extreme speech as a necessary side effect of the central values the theories place upon freedom of expression, the central focus of

38 LEE C.BOLLINGER, THE TOLERANT SOCIETY:FREEDOM OF SPEECH AND EXTREMIST SPEECH IN

AMERICA (1986).

39 Id. at 109.

tolerance theory is extreme speech (Bollinger calls it “extremist speech”). Bollinger, himself, does not give an explicit definition for extreme speech, but he does leave clues on how a definition can be formed. Extreme speech, Bollinger says, is what “nearly all of us believe immoral and vicious.”⁴⁰ It “tend[s] to attract attention,” and “is very often the product or the reflection of the intolerant mind at its worst and, as such, an illustration to us of what lies within ourselves.”⁴¹

Second, tolerance theory posits that tolerance of extreme speech should end where significant harm begins.⁴² Understanding harm and its relation to freedom of expression is important because content governance is about commercial intermediaries finding a balance between upholding the values of freedom of expression and mitigating the potential harms that individuals can cause through UGC. Individuals’ ability to tolerate extreme speech represents the balancing point, and it is argued in this study that digital intermediaries play a crucial role in influencing individuals’ tolerance by how they govern extreme speech. Third, tolerance theory holds that not only is it a natural tendency of government to censor, as proponents of individual autonomy and marketplace of ideas theory proclaim;⁴³ rather, it is the natural tendency of every human being to censor, and champions of freedom of expression must constantly be on guard against attempts from powerful non-state actors to censor speech.⁴⁴ This concept matches the argument from

40 Id. at 124.

41 Id. at 126.

42 Id. at 192. Bollinger does not answer the question “When is speech so harmful it should be banned?” He does argue that “social” harm caused by allowing speech that society generally disapproves of is not sufficient to warrant proscription. Id. However, the principle of harm being the boundary of tolerance is an important one that fits the analysis in this chapter.

43 SMOLLA,supra note 31, at 51.

44 BOLLINGER, supra note 38, at 86.

Internet governance that non-state actors have great power to control speech, and that this power is worrisome due to the relative lack of transparency and standards employed in the process of controlling the speech.

Finally, tolerance theory is important because, at bottom, Bollinger’s claim is that the act of tolerating extreme speech is an act of mental growth. Bollinger urges reflection on how society tends to invoke community norms to silence extreme, potentially harmful or otherwise undesirable speech so that society may collectively strengthen itself. Global networked communication continues to put more and more examples of detestable speech in front of our eyes, meaning that there has never been a more important time for society to strengthen its resolve and support for extreme speech.

The overall goal of this chapter is to distill the key values of freedom of

expression from First Amendment theory and doctrine. This goal answers Lessig’s call for a discussion on our values of freedom of expression as we continue to understand the relationship between content governance and freedom of expression. Lessig and many other legal scholars argue that we should focus on “constitutional values”⁴⁵ (others call them “goals,”⁴⁶ “principles,”⁴⁷ or “ideals”⁴⁸). One such value, which Lessig argues is the preeminent value of the First Amendment, is to encourage mass participation in public discourse by individuals.⁴⁹ Similarly, law professor Jack Balkin argues that “a theory of

45 Supra note 24, at 269.

46 Ruth Walden, A Government Action Approach to First Amendment Analysis, 69 JOURNALISM Q. 65, 81 (1992).

47 Adam Candeub, The First Amendment and Measuring Media Diversity: Constitutional Principles and Regulatory Challenges, 33 N.KY,L.REV. 373 (2006).

48 Robert C. Post and Reva B. Siegel, Democratic Constitutionalism, in THE CONSTITUTION IN 2020 (Jack M. Balkin & Reva B. Siegel eds., 2009), at 30.

49 LESSIG, supra note 24, at 269.

freedom of speech justified in terms of its potential contributions to representative self-government seems altogether too narrow in the age of the Internet.”⁵⁰ The Internet, he argues, is proof that “the point of the free speech principle is to promote not merely democracy, but something larger: a democratic culture” defined by mass participation.⁵¹ The argument of this chapter is that promoting a democratic culture through a

commitment to facilitating individual speech on platforms and tolerating the extreme forms of speech that invariably come with such mass participation are the main values of freedom of expression by which the concept of content governance should be judged.

Chapter 4: “Heckler’s Veto 2.0: Speakers’ Rights v. Audience Rights in a Networked Society”

This chapter looks at the First Amendment doctrine of the “Heckler’s Veto.” A heckler’s veto is “the suppression of speech by the government[] because of the

possibility of a violent reaction by hecklers.”⁵² A heckler’s veto occurs when “the state [hides] behind the unpleasant reaction of some portions of the public in order to silence a speaker” through the use of an instrument of law, such as a disorderly conduct statute.⁵³ The heckler’s veto offers an analytical lens through which to examine the phenomenon of digital intermediaries governing extreme UGC out of a concern that the UGC threatens to violate certain community norms in some way, shape or form. The heckler’s veto also offers an excellent analytical lens through which to address the conflict between

50 Balkin, The Future of Free Expression, supra note 27.

51 Id. (original emphasis). See also Balkin, Digital Speech and Democratic Culture, supra note 27, at 2.

52 Ronald B. Standler, HECKLER’S VETO, Dec. 4, 1999, available at http://www.rbs2.com/heckler.htm.

53 Cheryl A. Leanza, Heckler’s Veto Case Law as a Resource for Democratic Discourse, 35 HOFSTRA L.

REV. 1305, 1306 (2007).

speakers’ “rights” and audience “rights” in the context of networked communication.⁵⁴ These rights have distinct histories in First Amendment theory and jurisprudence, yet the heckler’s veto doctrine enshrines the principle that the rights of audiences end when members of an audience attempt to silence a speaker through an instrument of law.⁵⁵ Understanding the heckler’s veto is important because it illustrates the ways in which the First Amendment protects extreme speech from being silenced by individuals who would seek to use community norms to goad the law into restricting speech.⁵⁶ Subsequently, understanding how extreme speech and community norms clash will be important to understanding forms of content governance, particularly the form that involves

individuals putting pressure on intermediaries to remove or block speech that contravenes certain norms.

Chapter 5: “Facebook’s Free Speech Growing Pains: A Case of Content Governance”

Chapter 5 explores the content governance practices of arguably the most popular digital intermediary: Facebook. Facebook’s ubiquity in the global system of networked communication makes its content governance practices worthy of study; as of this

54 “Rights,” of course, are in quotes here because neither speakers nor audiences have a “right” regarding speech against a digital intermediary.

55 Essentially, the heckler’s veto doctrine straddles so-called negative First Amendment theories (such as the marketplace of ideas theory) that conceive of freedom of expression as a right against the government and so-called affirmative First Amendment theories (such as self-governance theory) that conceive of freedom of expression as a right that government can protect through proactive policies. See generally MEIKLEJOHN, supra note 26.

56 See ROBERT POST,CONSTITUTIONAL DOMAINS 144 (1995) (contending that the main goal of the First Amendment is to promote “critical interaction” among groups with conflicting opinions and values, and that the way it does so is by preventing the government from invoking community norms to silence extreme

56 See ROBERT POST,CONSTITUTIONAL DOMAINS 144 (1995) (contending that the main goal of the First Amendment is to promote “critical interaction” among groups with conflicting opinions and values, and that the way it does so is by preventing the government from invoking community norms to silence extreme