Governing Online Speech: From “Posts-as-Trumps” to Proportionality and Probability

Online speech governance stands at an inflection point. The state of emergency that platforms invoked during the COVID-19 pandemic is subsiding, and lawmakers are poised to transform the regulatory landscape. What emerges from this moment will shape the most important channels for communication in the modern era and have profound consequences for individuals, societies, and democratic governance. Tracing the path to this point illuminates the tasks that the institutions created during this transformation must be designed to do. This history shows that where online speech governance was once dominated by the First Amendment tradition’s categorical and individualistic approach to adjudicating speech conflicts, that approach became strained, and online speech governance now revolves around two other principles: proportionality and probability. Proportionality requires no longer focusing on the speech interest in an individual post alone, but also taking account of other societal interests that can justify proportionate limitations on content. But the unfathomable scale of online speech makes enforcement of rules only ever a matter of probability: Content moderation will always involve error, and so the pertinent questions are what error rates are reasonable and which kinds of errors should be preferred. Platforms’ actions during the pandemic have thrown into stark relief the centrality of these principles to online speech governance and also how undertheorized they remain. This Article reviews the causes of this shift from a “posts-as-trumps” approach to online speech governance to one of systemic balancing and what this new era of content moderation entails for platforms and their regulators.