1 of 10

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.

2 of 10

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

​

3 of 10

Jess’ Comments on Being a Student Research Assistant

  • Perks
    • Fully immersed into the Internet law & policy field;
    • Many opportunities to network through attending events + intros;
    • Provided substantial input into key works / talks that continue to shape industry and policymaking today.
      • Challenges you to think on your feet / provide meaningful commentary;
      • My personal favorite: Why Section 230 Is Better Than the First Amendment
    • Built an ongoing professional relationship with a key opinion former;

​

  • Deliverables
    • Established my “brand” via social media (Twitter primarily);
    • Published 4 academic articles to SSRN;
    • 25+ publications in total (op-eds, think pieces, short essays);
    • 50+ speaking engagements (panels, conferences, guest lectures);

​

  • Key Takeaway: shorter publications tend to go further than longer, law review style, articles.

​

​

4 of 10

The Current Legal Landscape

  • Existing Legal Obligations → Internet services are typically obligated to remove illegal and other types of tortious content.

​

  • House Rules → the policies Internet services create and use to restrict legal but objectionable activity and content.

​

  • Internet services currently rely on several legal tools to shield themselves from liability for termination / removal decisions: �
    • The First Amendment / State Action Doctrine;
    • Speech-enhancing laws like Section 230 and anti-SLAPP;
    • Contractual provisions (terms of service);

​

  • However, this could change if Internet services are converted into common carriers or state actors.

​

​

​

​

5 of 10

Project Scope

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

​

  • 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

​

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

6 of 10

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

​

7 of 10

Select Cases from the Data Set

  • House rules primarily covered the termination / removal decisions (spam, #MAGA/QAnon, and other legal but anti-social content / activities). �

​

​

​

​

Case

Content at Issue

Plaintiff Claims

Outcome

Enhanced Athlete v. Google (2020)

encouraging use of dangerous performance enhancing supplements

unfair competition (17200); breach of implied covenant of good faith

MTD, Section 230(c)(1)

Wilson v. Twitter (2020)

LGTBQ+ slurs

state action, discrimination

First Amendment / Section 230(c)(1)

Murphy v. Twitter (2019)

​

misgendering / deadnaming

breach of contract, 17200

MTD, Section 230(c)(1)

8 of 10

Anti-Discrimination Claims

  • Many claims alleged Internet services engaged in illegal discrimination based on race, religion, and sexual orientation.

​

​

​

​

​

​

​

​

​

​

​

​

​

​

​

​

​

​

​

​

Case

Issue

Plaintiff Claims

Outcome

Lewis v. Google (2020)

Misandry -- Plaintiff alleged YT illegally discriminated against him for “patriotic American citizen” and promoting “Christian beliefs”

1A violations, national origin discrimination, false advertising, fraud, tortious interference, breach of implied covenants

​

​

230(c)(1), constitutional claims failed, lack of standing / legal merit

Domen v. Vimeo (2020)

Promotion of sexual orientation change efforts -- Plaintiff alleged illegal discrimination based on being heterosexual

California’s Unruh Act, New York’s Sexual Orientation Non-Discrimination Act, and the California Constitution

230(c)(2)(A)

9 of 10

Can Regulators Prevent Online Publishers from Enforcing Their House Rules?

  • Plotkin v. Astorian (2021): “As a private entity, The Astorian is free to create a public forum subject to its own editorial discretion without running afoul of the First Amendment”

​

  • Transparency in Technology Act (Florida, SB 7072). Restrictions include:
    • Can’t deplatform political candidates
    • Can’t ban content from journalistic enterprises
    • Must moderate content consistently
    • Must publish house rules
    • Can update house rules only 1x/month
    • Legal challenge: NetChoice v. Moody

​

  • Texas H.B. 20. Restrictions include:
    • “A social media platform may not censor a user, a user’s expression, or a user’s ability to receive the expression of another person based on: (1) the viewpoint of the user or another person; (2) the viewpoint represented in the user’s expression or another person’s expression; or (3) a user’s geographic location in this state or any part of this state.”
    • Legal challenge: NetChoice v. Paxton

​

10 of 10

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

​

  • Possible outcome #2: shutdown

​

  • 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

​