Case Western Reserve Journal of International Law 52 (2020)
Crime as Cognitive Constraint
same…’ [I]t is hard to define any one of them without reference to all.”104
Facebook’s speech regulation demonstrates this “loopification.” Its
system of governance mimics constitutional structures. The
Community Standards function as law, content moderators enforce the
law, and the Facebook Oversight Board will interpret the law as a
“supreme court” 105 charged with deciding challenging content. 106
Importantly, Facebook’s ban of the Tatmadaw commander-in-chief
from the platform brings to its fullest expression platforms’ state-like
power. In a regulatory paradox, 107 the traditional roles of regulator
(state) and regulated corporate entity (non-state) are reversed. In this
light, platforms not only regulate individual expression, and trigger the
threat of collateral censorship, 108 they also regulate state speech. The
irony is not lost in a country where the military imposed decades of
heavy censorship on its citizens. This seems to be another distinction
104. Id. at 1349.
105. Hanna Kozlowska, Facebook Will Have a Supreme Court-like Body Within
a Year, QUARTZ (Nov. 16, 2018), https://qz.com/1465898/markzuckerberg-facebook-to-have-a-supreme-court-within-a-year/. But see
Symposium, Platform Society: Copyright, Free Speech, and Sharing on
Social Media Platforms, 30 FORDHAM INTELL. PROP. MEDIA & ENT. L. J.
1,
12–14
(2019),
video
available
at
http://www.fordhamiplj.org/2019/10/10/the-27th-annual-ipljsymposium-platform-society-copyright-free-speech-and-sharing-on-socialmedia-platforms-friday-october-4-2019/
(disagreeing
on
the
characterization of the Oversight Board as a “supreme court” under the
current institutional design because the Board, in addition to deciding
cases on appeal, has the power to issue advisory opinions that will shape
BOARD,
Facebook’s
content
policy);
OVERSIGHT
https://www.oversightboard.com (last visited May 17, 2020).
106. See Nick Clegg, Welcoming the Oversight Board, FACEBOOK (May 6,
2020),
https://about.fb.com/news/2020/05/welcoming-the-oversightboard/; Brent Harris, Establishing Structure and Governance for an
Independent Oversight Board, FACEBOOK (Sept. 17, 2019),
https://about.fb.com/news/2019/09/oversight-board-structure/;
A
Conversation with Mark Zuckerberg, Noah Feldman, and Jenny Martinez,
(June
27,
2019),
FACEBOOK
https://newsroom.fb.com/news/2019/06/mark-challenge-jenny-martineznoah-feldman/.
107. Removing Myanmar Military Officials from Facebook, FACEBOOK (Aug.
28, 2018), https://newsroom.fb.com/news/2018/08/removing-myanmarofficials/; Antoni Slodkowski, Facebook Bans Myanmar Army Chief,
Others in Unprecedented Move, REUTERS (Aug. 27, 2018),
https://www.reuters.com/article/us-myanmar-facebook/facebook-bansmyanmar-army-chief-others-in-unprecedented-move-idUSKCN1LC0R7.
108. See generally Klonick, supra note 103; Jack Balkin, Free Speech is a
Triangle, 118 COLUM. L. REV. 2011, 2016-17 (2018); Jack Balkin, OldSchool/New-School Speech Regulation, 127 HARV. L. REV. 2296, 2298
(2014).
161