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BYU Law Review

Article Title

Moderating from Nowhere

Authors

Gilad Abiri

Abstract

We are living in the midst of a battle over online hate speech regulation, and the stakes could not be higher. Hate speech not only harms its intended victims, be they individuals or groups, but it also polarizes and divides society in ways that undermine the health of democratic regimes. While there is widespread agreement that the current situation of online discourse is untenable, scholars and policymakers are deeply divided on the best way to improve it.

Until recently, American free speech norms have dominated the content moderation policies of digital media platforms. First Amendment norms are extremely resistant to censorship and therefore very protective of offensive and hateful speech. However, in recent years, this influence has been gradually eroded by what could be called European free speech norms, which are significantly more comfortable with directly regulating speech to try to prevent social and political harm. The epitome of the European approach is Germany s Network Enforcement Act (NetzDG), which requires platforms to enforce domestic hate speech laws within that country s borders. This general transformation, and NetzDG especially, have been met by nearly unanimous rebuke by digital free speech scholars, who argue that such measures might steer the platforms into creating a public sphere in which speech is stunted, and the values of free speech are not upheld.

While acknowledging (to some extent, at least) the strength of these critiques, this Article argues that they may well be outweighed by how laws like NetzDG respond effectively to one of the major challenges of the new digital platform public sphere: its detachment from civil society and the public discourse of particular democratic societies. Digital platforms are moderating the digital public sphere from nowhere. This disconnection between the new information gatekeepers (the platforms) and the circumstances and needs of democratic states undermines the social conditions necessary for a healthy democracy. Specifically, the rise of a transnational digital sphere dominated by major digital platforms undermines traditional media gatekeepers capacity to moderate the public debate. Without this guiding hand and without any legal regulation, the public debate quickly devolves, as is evident from the increasingly divisive impact online hate speech has on democratic societies. When tried and true social mechanisms – such as traditional media – are rendered ineffective, it makes sense to counteract the effects of hate speech and stabilize public debate by turning to legal speech regulation such as NetzDG. In at least this sense, we are likely to be better off with an internet influenced by European norms.

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© 2022 Brigham Young University Law Review


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