Journal of Free Speech Law: "Empowering Speech by Moderating It," by Danielle Keats Citron & Jonathan Penney

A new article from the Daedalus (Journal of the American Academy of Arts and Sciences) Future of Free Speech Symposium.

The article is here; the Introduction:

A myth of epic proportion has gained traction: that any effort to moderate online speech is a zero-sum game, with free expression as the loser. When social media companies remove destructive posts that violate terms of service, people cry, "Censorship!" Alex Jones, founder of the far-right conspiracy news site Infowars, accused YouTube of "killing the First Amendment" after the company blocked videos that revealed maps of the homes of Sandy Hook families. This isn't just an extremist view: the Pew Research Center has found that a majority of people believe that companies are engaged in "political censorship" when they moderate content. Some legislators have made this view a cornerstone of their political philosophy. At a House Oversight and Accountability Committee hearing in February 2023, Representative Lauren Boebert denounced Twitter as a "speech overlord." To the company's former head of Trust and Safety, Yoel Roth, she angrily admonished, "How dare you" shadow-ban my posts (even though no evidence supported the claim and former Twitter executives denied it). Representative Marjorie Taylor Greene stated that Big Tech was silencing Americans. The censorship narrative has gained traction in state legislatures as well. Underlying this view is the assumption that content moderation has no upside for free expression.

The outcry is similarly strident at the suggestion that law should curtail online abuse. Online assaults that include doxing, intimate privacy violations, and threats are dismissed as weak attempts to "blow off steam." Any effort to address them is viewed as a threat to free speech. The ACLU, for instance, has adamantly opposed the passage of laws penalizing the nonconsensual disclosure of intimate images. These laws risk chilling legitimate expression, the ACLU has argued, even though the laws made clear that they would not cover matters of legitimate public interest. Under law's blighting stare, free expression is impossible.

For more than a decade, we have been interrogating these claims. Rather than vanquishing free expression, combating online abuse frees people to speak. In the face of online assaults that amount to cyberstalking or intimate privacy violations, targeted individuals stop expressing themselves. They close their social media accounts, lest perpetrators exploit those accounts to attack them. They withdraw from family and friends. If their loved ones try to "talk back" to abusers, they face terrifying online assaults themselves. Victims and their loved ones are silenced and terrorized. Research makes clear that online abuse exacts significant costs to free expression.

As our research suggests, legal and industry interventions against such abuse make space for more expression rather than less. Such interventions enable victims to speak their truths. Rather than silencing speech that deserves normative protection, law and corporate policies enable victims to trust companies enabling communications so they can reveal themselves and share their truths.