Presentation given as part of a panel on online content moderation on May 18, 2022 at the Annual Meeting of the New Jersey State Bar Association. Cosponsored by the NJSBA Media Law Committee
2. Censorship
• Censorship is not the monopoly of the state
– unlike infringement of the constitutional
right to free speech
• The Internet offers unprecedented access to
public forums and thus
• The greatest threat to existing stakeholders and
• The most tempting targets for CENSORSHIP
3. Stakeholders
First stage
censorship
• Legal regimes: Dubious legal claims by
established brands, manufacturers to
contain competition
• Trademarks
• “unauthorized distributors”; grey market goods
• Copyright
• meritless DMCA takedown notices to suppress
messaging
• Tortious interference claims
• alternative legal theory used in unauthorized
distribution cases
4. Stakeholders
Next stage
censorship
• Private regimes: Social media platforms
• Terms of service
• “content moderation”
• no transparency
• no accountability
• consistently inconsistent
• Activist capture
• activist “issue” / party front groups
• internal corporate political culture
• commercial interests
• Political capture
• implied threat of regulation
• interface / revolving door with corporate /
management
5. Stakeholders
Current / end stage
censorship – 1
• Social media – political – corporate
convergence
• Algorithm manipulation
• “trending” content-preference prompting
• shadow banning
• account banning
• content banning
• Media anticompetitive efforts
• shared interest with dominant SM platforms to
prevent new entrants
• “misinformation,” “disinformation,” “fake news”
• explicit targeting of new media entrants (OANN,
Epoch Times, Project Veritas)
• Government / media joint operations
• Project Veritas – FBI – NY Times
• Pending defamation litigation
6. Stakeholders
Current / end stage
censorship – 2
• State censorship
• Covert cooperation with SM platforms
• officially-approved “narratives”
• undisclosed censorship
• Official Ministries of Truth
• “Office of Election Security” – O’Handley (Cal.)
• Twitter deleted 95% of “problematic” content flagged
by Cal. Dept. of State
• Administration public, actions taken private
• Judicial Watch disclosures
• Homeland Security “Disinformation Governance
Board”
• Placement in omnipotent, secret DHS
• Unprecedented government involvement in
information management?
• History of propaganda, state disinformation (CIA,
COINTELPRO)