Cyber Alliance Speaker Series: “Facebook v. Sullivan: Building Constitutional Law for Online Speech”

In the U.S., there are now two systems to adjudicate disputes about harmful speech: the legal system in which judges apply constitutional law to limit tort claims alleging injuries caused by speech, and the content-moderation system in which platforms like Facebook implement the rules that govern online speech. These platforms aren’t bound by the First Amendment, but they rely on many of the tools used by courts to resolve tensions between regulating harmful speech and preserving free expression. In this Cyber Alliance talk, St. John’s Prof. Kate Klonick will discuss her article co-authored by Yale PhD candidate Thomas Kadri, in which they offer the first empirical analysis of how judges and content moderators have used these two concepts to shape the boundaries of free speech. They explore how courts have shaped the constitutional concepts of public figures and newsworthiness in the face of tort claims for defamation, invasion of privacy, and intentional infliction of emotional distress. They then examine how Facebook’s content-moderation system channeled elements of the courts’ reasoning for imposing First Amendment limits on tort liability. Finally, they explain what this comparison reveals about the structural role platforms play in today’s speech ecosystem and how it illuminates new solutions. They argue that these platforms act as legislature, executive, judiciary, and press — but without any separation of powers to establish checks and balances, concluding that platforms should adopt constitution-like charters to guide the independent institutions that should oversee them. There will be time for casual conversation and light refreshments before and after the presentation. Please RSVP to tgabs@bu.edu. *Please note the special date! Not on a Wednesday as usual.*