Journal of Free Speech Law: My "The Reverse Spider-Man Principle: With Great Responsibility Comes Great Power"

Just published as part of the symposium on Media and Society After Technological Disruption, edited by Profs. Justin "Gus" Hurwitz & Kyle Langvardt.

The article is here; here is the Introduction:

An entity—a landlord, a manufacturer, a phone company, a credit card company, an Internet platform, a self-driving-car manufacturer—is making money off its customers' activities. Some of those customers are using the entity's services in ways that are criminal, tortious, or otherwise reprehensible. Should the entity be held responsible, legally or morally, for its role (however unintentional) in facilitating its customers' activities? This question has famously been at the center of the debates about platform content moderation, but it can come up in other contexts as well.

It is a broad question, and there might be no general answer. (Perhaps it is two broad questions—one about legal responsibility and one about moral responsibility—but I think the two are connected enough to be worth discussing together.) In this essay, though, I'd like to focus on one downside of answering it "yes": what I call the Reverse Spider-Man Principle—with great responsibility comes great power. Whenever we are contemplating holding entities responsible for their customers' behavior, we should think about whether we want to empower such entities to surveil, investigate, and police their customers, both as to that particular behavior and as to other behavior. And that is especially so when the behavior consists of speech, and the exercise of power can thus affect public debate.

Of course, some of the entities with whom we have relationships do have power over us. Employers are a classic example: In part precisely because they are responsible for our actions (through principles such as respondeat superior or negligent hiring/supervision liability), they have great power to control what we do, both on the job and in some measure off the job. Doctors have the power to decide what prescription drugs we can buy, and psychiatrists have the responsibility (and the power) to report when their patients make credible threats against third parties. And of course we are all subject to the power of police officers, who have the professional though not the legal responsibility to prevent and investigate crime.

On the other hand, we generally don't expect to be in such subordinate relationships to phone companies, or to manufacturers selling us products. We generally don't expect them to monitor how we use their products or services (except in rare situations where our use of a service interferes with the operation of the service itself), or to monitor our politics to see if we are the sorts of people who might use the products or services badly. At most, we expect some establishments to perform some narrow checks at the time of a sale, often defined specifically and clearly by statute, for instance by laws that require bars not to serve people who are drunk or that require gun dealers to perform background checks on buyers.

Many of us value the fact that, in service-oriented economies, companies try hard to do what it takes to keep customers (consider the mentality that "the customer is always right"), rather than expecting customers to comply with the companies' demands. But if we insist on more "responsibility" from such providers, we will effectively push them to exercise more power over us, and thus fundamentally change the nature of their relationships with us. If companies are required to police the use or users of their products and services (what some call "third-party policing") then people's relationship with them may become more and more like people's relationship with the police.

To be sure, none of this is a dispositive argument against demanding such responsibility. Perhaps sometimes such responsibility is called for. My point, though, is that this responsibility also carries costs. We should take those costs into account when we engage in "balancing," "proportionality tests," Learned Hand cost-benefit analysis, or something similar—whether as a matter of adjudication, policymaking, or even just moral judgment—in deciding whether to demand such responsibility.