(1) Reddit, Facebook, Twitter, and YouTube are novel venues for content moderation, a familiar issue that existed long before the digital age. When interpreted broadly, content moderation has long been central to First Amendment jurisprudence. It has been key to creating a culture that is conducive to democracy.
(2) Content moderation is an aspect of other areas of the law, as well. Defamation, intimidation, and perjury laws seek to moderate content. These laws consider contexts where society does not want absolute free expression. Such laws condemn false and harmful content in favor of what is true. Legal consequences for breaking any of these laws demonstrate how highly our society values fact and the context from which those facts arise.
(3) Regulations in the legal profession are also a form of content moderation. In 1956, Virginia adopted over a dozen statutes in opposition to Brown v. Board of Education and desegregation. Some of these statutes were regulations for the legal profession that targeted the NAACP. NAACP v. Button examined whether Virginia laws on barratry violated the First and Fourteenth Amendments. Before the Button opinion was finally issued in January 1963, the case faced a long and winding road behind closed doors at the Supreme Court.
(4) When the case was originally argued in November 1961, Justice Felix Frankfurter and Justice Charles Whittaker were still on the Court. Before their retirements, Frankfurter and Whittaker led a 5–4 majority in favor of upholding the Virginia law. Justice Frankfurter, a former Harvard professor, did not want to give the NAACP what he perceived as special treatment; Justice Frankfurter did not see any reason why the NAACP would be treated differently than other cause lawyering groups in Virginia.
(5) Justice Hugo Black, a former politician from Alabama who spent a brief stint as a Ku Klux Klan member decades earlier, supported the NAACP. Justice Black correctly identified the professional regulations set forth by Virginia as pretext for stopping the NAACP from continuing its impact litigation work. “Virginia law stands absolutely without precedent in either English or American law as the first instance in which a government has imposed severe penalties, under the label of ‘barratry,’ upon an oppressed group for doing nothing more than banding together to bring meritorious lawsuits to force the stronger groups in society to obey the law and respect the rights of the weak,” wrote Black in his unpublished opinion. Black further explained that Black Americans needed the NAACP to assert their legal rights; it was near impossible to try on an individual basis “without actual economic, social, and sometimes even physical danger to themselves.” Black called for a race-and-power conscious framework. Unfortunately, this framework could only gain the support of three other justices, not the additional four needed for a majority.
(6) Unexpectedly, both Justice Frankfurter and Justice Whittaker had to retire for health reasons before their majority opinion in favor of Virginia could be issued. As two new justices, Justice Byron White and Justice Arthur Goldberg, joined the court, Justice William J. Brennan saw an opportunity. Justice Brennan agreed with Justice Black that race and power were the real issues, but in order to safely convince Justice White and Justice Goldberg to rule in favor of the NAACP, Justice Brennan adopted a less risky First Amendment analysis. The case was reargued in October 1962 for the benefit of the two new justices. In an opinion authored by Justice Brennan, the majority employed an egalitarian, color-blind analysis to rule in favor of the NAACP.
(7) The color-blind analysis in Button is also an example of judicial content moderation that disfavored a blunt race-and-power conscious framework. Decisions such as Button act as guidelines to Justices who continue to moderate the law. If race-and-power conscious analysis had been adopted and implemented in later cases, perhaps in cases such as Virginia v. Black, the Court would have instead found that Virginia’s statute against cross burning was constitutional. Perhaps group libel arguments would be a more viable sword against white supremacist hate speech and actions, such as the Unite the Right rally or the storming of the United States Capitol.
(8) The Harper’s Letter from this past summer, and similar cries of “cancel culture”, are further examples of content moderation. The Harper’s Letter did not demonstrate any consciousness of race and power. The signatories were primarily white people in positions of significant power. Though they may have viewed themselves as fighting for First Amendment values, the out-of-touch authors and signatories may as well have announced that Marie Antoinette was their mascot. Cries of “cancel culture” are anti-democratic, especially when such cries were made at the same time that millions of protesters wanted to “cancel” racism and white supremacy in a fight for a better America where Black Lives Matter. #MeToo supporters may also be seen as part of “cancel culture.” But what is being cancelled and why? Does its existence rely on the silence of someone else? Does the freedom of the cancelled come at the expense of the cancell-ee? Is this just long-overdue accountability? Is “cancel culture” actually democracy in its purest form?
(9) As opposed to what I perceived as a performative response from Facebook, Reddit’s transparent and reflective approach gave me hope. When it comes to content moderation, free speech, and a truly robust democracy for all, I am most persuaded by Reddit’s then-general counsel, Melissa Tidwell, who questioned simplistic free speech arguments that come at the expense of women and people of color.
(10) When formulating standards for content moderation, we must de-emphasize the traditional understanding of First Amendment jurisprudence, which, at best, is egalitarian and color-blind. Precedent is not the answer. Content moderation may best be guided by creative interpretations of the First Amendment and the role of law in a democratic society.
(11) Content moderation of any variety must prioritize race-and-power consciousness. The Court often says that political questions must be left to the other branches through the democratic process. But this assumes a functioning democracy. The Court has a responsibility to reinforce democracy. By pretending that the Court does not have a role in reinforcing democracy, the Court allows subversion of democracy. By not considering how race and power greatly impact real outcomes, the Court eschews its responsibility to reinforce democracy. Carolene Products Footnote Four paves the way for the Court to reinforce, not subvert, democracy.
(12) The purpose of content moderation is to cultivate a certain environment. Thinking about content moderation on digital platforms is similar to content moderation in real life. Professors act as “content moderators” in the classroom and administrators are “content moderators” of a school. As someone who has spent a lot of time thinking about how the classroom environment can be more inclusive, I have considered what the “Terms of Agreement” would look like in classrooms and in a school. I would hope that the terms would allow room for error, apology, collaborative learning, and growth. I hope the terms, perhaps inspired by the veil of ignorance, can create an inclusive environment that, with teamwork, can stamp out the bad. I hope the community guided by the terms can overcome fear and anger. I hope the community is a constant work in progress. I hope it resembles r/Place.
- Paragraphs 3, 4, 5, 6, and 11 are based on my reading of the following fantastic article: Rosenblum, Noah, Power-Conscious Professional Responsibility: Justice Black’s Unpublished Dissent and a Lost Alternative Approach to the Ethics of Cause Lawyering (February 15, 2020). Georgetown Journal of Legal Ethics, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3635662 or http://dx.doi.org/10.2139/ssrn.3635662.
- Also recommend reading the article on Reddit. It made me hopeful. https://www.newyorker.com/magazine/2018/03/19/reddit-and-the-struggle-to-detoxify-the-internet
- Just to be super clear — I think Justice Hugo Black was flawed and left a flawed legacy behind. He never expressed regret for Korematsu and that will always be a stain on his legacy. But I think he is also a great example that no one is irredeemable. Justice Black joined the KKK because it was the professionally beneficial move for an Alabama lawyer in the 1920s. It is of course inexcusable to do the wrong thing because it is the popular thing to do. But Justice Black would later express regret for his membership with the KKK. These were not empty words. When he was on the Supreme Court, Justice Black took strong stances that were in direct opposition to what the KKK stood for. He tried to get to the real root of the issue even when he could not get all his colleagues on board. The race-and-power conscious framework is an example of this. People are dynamic, not static. People are capable of changing for the better throughout their lives. It would be depressing to think otherwise. Why fight for a better world if we don’t think minds and ways can be changed?