2018] THE NEW GOVERNORS 1601
ments, Facebook blamed the takedown on a “technical glitch” but pro-
vided no further details.
10
This is not entirely surprising. Though it
might appear that any internet user can publish freely and instantly
online, many content-publication platforms actively moderate
11
the con-
tent posted by their users.
12
Yet despite the essential nature of these
platforms to modern free speech and democratic culture,
13
very little is
known about how or why these companies curate user content.
14
In response to calls for transparency, this Article examines precisely
what these private platforms are actually doing to moderate user-
generated content and why they are doing so. It argues that these plat-
forms are best thought of as self-regulating
15
private entities, governing
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
10
William Turton, Facebook Stands by Technical Glitch Claim, Says Cop Didn’t Delete
Philando Castile Video, G
IZMODO
(July 8, 2016, 1:36 PM), http://gizmodo.com/facebook-stands-
by-technical-glitch-claim-says-cop-did-1783349993 [https://perma.cc/3ZWP-7SM9].
11
I use the terms “moderate,” “curate,” and sometimes “regulate” to describe the behavior of
these private platforms in both keeping up and taking down user-generated content. I use these
terms rather than using the term “censor,” which evokes the ideas of only removal of material and
various practices of culturally expressive discipline or control. See generally R
obert
C. P
ost
, P
ro-
ject
R
eport
: C
ensorship
and
S
ilencing
, 51 B
ULL
. A
M
. A
CAD
. A
RTS
& S
CI
. 32, 32 (1998). Where
I do use “regulate,” I do so in a more colloquial sense and not the way in which Professor Jack
Balkin uses the term “speech regulation,” which concerns government regulation of speech or gov-
ernment cooperation, coercion, or partnership with private entities to reflect government ends. See
Jack M. Balkin, Old-School/New-School Speech Regulation, 127 H
ARV
. L. R
EV
. 2296, 2299 (2014)
(also explaining that the phrase “collateral censorship” is a term of art exempted from this
taxonomy).
12
See Catherine Buni & Soraya Chemaly, The Secret Rules of the Internet: The Murky History
of Moderation, and How It’s Shaping the Future of Free Speech, T
HE
V
ERGE
(Apr. 13, 2016),
https://www.theverge.com/2016/4/13/11387934/internet-moderator-history-youtube-facebook-reddit-
censorship-free-speech [https://perma.cc/PDM3-P6YH]; Adrian Chen, The Laborers Who Keep Dick
Pics and Beheadings Out of Your Facebook Feed, W
IRED
(Oct. 23, 2014, 6:30 AM),
https://www.wired.com/2014/10/content-moderation/ [https://perma.cc/L5ME-T4H6]; Jeffrey Rosen,
Google’s Gatekeepers, N.Y.
T
IMES
M
AG
. (Nov. 28, 2008), http://nyti.ms/2oc9lqw [https://perma.cc/
YBM8-TNXC].
13
Packingham v. North Carolina, 137 S. Ct. 1730, 1737 (2017) (holding that a state statute bar-
ring registered sex offenders from using online social media platforms was unconstitutional under
the First Amendment). In his majority opinion, Justice Kennedy wrote that “[w]hile in the past
there may have been difficulty in identifying the most important places (in a spatial sense) for the
exchange of views, today the answer is clear. It is cyberspace — the ‘vast democratic forums of the
Internet’ in general, and social media in particular.” Id. at 1735 (citation omitted) (quoting Reno v.
ACLU, 521 U.S. 844, 868 (1997)).
14
See, e.g., Marvin Ammori, The “New” New York Times: Free Speech Lawyering in the Age
of Google and Twitter, 127 H
ARV
. L. R
EV
. 2259, 2273–76 (2014); Marjorie Heins, The Brave New
World of Social Media Censorship, 127 H
ARV
. L. R
EV
. F. 325, 326 (2014) (describing Facebook’s
internal appeals process as “mysterious at best” and noting, about their internal policies, that “[t]he
details of these rules . . . we do not know” and that the censorship “process in the private world of
social media is secret”).
15
See generally Jody Freeman, The Private Role in Public Governance, 75 N.Y.U. L. R
EV
. 543
(2000); Douglas C. Michael, Federal Agency Use of Audited Self-Regulation as a Regulatory Tech-
nique, 47 A
DMIN
. L. R
EV
. 171 (1995).