The Benefits of Internet Services Enforcing Their House Rules

Prof. Eric Goldman & Jess Miers

http://www.ericgoldman.org | https://ctrlaltdissent.com/section-230-work/

egoldman@gmail.com | miersjessica@gmail.com

Presenters are speaking in their academic capacities. Their opinions do not represent their previous or current employers.

Eric Goldman & Jess Miers, Online Account Terminations/Content Removals and the Benefits of Internet Services Enforcing Their House Rules, 1 J. Free Speech L. 191 (2021), available at https://ssrn.com/abstract=3911509

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Project Scope

• Most media enterprises adopt “house rules” = editorial standards for Constitutionally protected content that’s nevertheless not suitable for the publisher’s audience

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• Some regulators and plaintiffs seek to eliminate the house rules of Internet services and instead impose “must-carry” obligations
• Ex: bills/lawsuits proposing that Internet services are “common carriers” or “utilities”
• Ex: Florida requires “consistent” editorial decisions
• Ex: Texas requires “viewpoint-neutral” editorial decisions

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• Our project: (1) what have courts said to date? and (2) what would happen if the jurisprudence were changed?

Paper Findings

• Data Set: 62 cases where Internet services applied their house rules to terminate accounts or remove/downgrade content (cutoff March 15, 2021)
• Plaintiffs include Parler, Tulsi Gabbard, Laura Loomer, Jared Taylor, Prager U
• Trump’s cases against Facebook, YouTube, & Twitter are in-scope but beyond the cutoff�
• Plaintiffs make the following claims:
• Service engaged in unconstitutional censorship
• Illegal discrimination as a result of biased moderation decisions
• Breach of contract / consumer protection
• Other misc. claims�
• Findings:
• Pro se cases are overrepresented
• Defendant Internet services win early and often (~90% of the cases resolved in the defense’s favor on a motion to dismiss)
• Section 230 mattered in less than half the cases
• Plaintiffs have never won a final ruling on the merits�
• Topline conclusion: Internet services currently have unrestricted legal freedom to make content moderation decisions

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What If Internet Services Can’t Enforce Their House Rules?

• Possible outcome #1: free-for-all
• Bad content drives away good
• Dataset cases included demands to carry spam, promotion of dangerous substances, misinformation / disinformation (#MAGA, QAnon)
• Dataset cases included demands to carry exclusionary content, e.g., hate speech (LGBTQ+ / racial slurs) & misgendering / deadnaming
• Not monetizable = not sustainable
• Majority conversations dominate minority conversations
• Majority interests (Christian, male, heterosexual) claimed they were discriminated against

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• Possible outcome #2: shutdown

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• Possible outcome #3: shift from amateur content to professional content
• Paywalls almost certainly required = we will all pay more for content, which has distributional effects
• Fewer voices will be represented
• Less diverse voices will be represented
• Fewer speech venues, more Quibis

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