Duke Law & Technology Review

By: Evelyn Mary Aswad 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

By: Nicholas J. McGuire The ubiquity of cell phones in today’s society has forced courts to change or dismiss established, but inapplicable analytical frameworks. Two such frameworks in the school setting are regulations of student speech and of student searches. This Article traces the constitutional jurisprudence of both First Amendment off-campus speech protection and Fourth Amendment search standards as applied to the school setting. It then analyzes how the Supreme Court’s ruling in Riley v. California complicates both areas. Finally, it proposes a pragmatic solution: by recognizing a categorical First Amendment exception for “substantial threats” against the school community, courts could accommodate students’ constitutional rights while upholding school administrators’ ability to maintain a safe environment. Download Full Article (PDF) Cite: 17 Duke L. & Tech. Rev. 1

By: Frank Fagan Social media platforms are motivated by profit, corporate image, long-term viability, good citizenship, and a desire for friendly legal environments. These managerial interests stand in contrast to the gubernatorial interests of the state, which include the promotion of free speech, the development of e-commerce, various counter terrorism initiatives, and the discouragement of hate speech. Inasmuch as managerial and gubernatorial interests overlap, a self-regulation model of platform governance should prevail. Inasmuch as they diverge, regulation is desirable when its benefits exceed its costs. An assessment of the benefits and costs of social media regulation should account for how social facts, norms, and falsehoods proliferate. This Article sketches a basic economic model. What emerges from the analysis is that the quality of discourse cannot be controlled through suppression of content, or even disclosure of source. A better approach is to modify, in a manner conducive to discursive excellence, the structure of the forum. Optimal platform architecture should aim to reduce the systemic externalities generated by the social interactions that they enable, including the social costs of unlawful interference in elections and the proliferation of hate speech. Simultaneously, a systemic approach to social media regulation implies fewer controls on user