Read the Fifth Circuit decision in Netchoice vs. Paxton takes me back to the old days of the Volokh conspiracy. A bit of background: when we were at volokh.com, we have introduced open comment threads. For a few years, I spent over an hour a day, every day, moderating the Volokh Conspiracy comment threads. I quit after we moved to The Washington Post in 2014, where comment moderation belonged to them. I’m very happy to no longer moderate comments. But my experience with comment moderation at volokh.com left a lasting impression.
I think three of these impressions might be relevant in thinking about netchoice.
First: It is a strange rule of human nature that most people who are moderated in an online forum feel, with great certainty, that they are being censored for their beliefs. Few people think they went too far or broke the rules. Moderation is generally seen as a product of bias. So the liberal commenters were convinced that I deleted their comments or even banned them because this is a conservative blog and we were afraid that the liberal truths would pierce the darkness and show the false assertions of the conservatives . And the conservative commentators were quite convinced that I deleted their comments or even banned them because we are liberals trying to keep conservative truths from exposing liberal lies. It just happened all the time. Moderation has led to claims of censorship like day following night.
Second: Content moderation always reflects a message from the moderator. My goal in moderating the Volokh Conspiracy comments was simply to keep discussions civil. My thinking was that if you can keep comments civil, you’ll not only encourage better comments, but you’ll also attract better commenters. And I think experience has proven that to be correct. For a few years there, Volokh’s moderated comment threads were pretty insightful places to look for insights on our posts. But moderation always involves some sort of message. It implies some value or judgment that the site has (or maybe just the lead moderator) that it wants to advance. For example, when I was moderating rude comments and commenters on volokh.com, I didn’t care if an opinion was liberal or conservative. But my moderation still expressed a value: a belief in a marketplace of ideas, where we wanted ideas to be expressed in a way that could persuade. It was the value that we (or I) had. It is a process value, but still a value. Moderation has always been an effort to advance that underlying value that we had.
Third, perfect comment moderation is impossible, but you can’t let perfect be the enemy of good. I wrote above that many moderate commenters thought they were being censored for their beliefs. A corollary is that many commenters had examples of comments from the other side that had remained in place, seemingly unmoderated, which proved bias to them. If you deleted a comment as uncivil, it was common to hear howls of outrage months ago jukeboxgrad had a substantially similar comment somewhere that is still relevant, so under the principles of due process and Magna Carta it would be despicable to moderate this comment now. The problem was the scale. We could have 20 messages a day at that time because there were a lot of short messages. An average post can receive (say) 100 comments, with some receiving many more. That was about 2,000 comments to sift through each day. You would need full-time moderators to try to moderate them all, with some kind of legal process to rule on individual comment moderation decisions. Moderate commenters often seemed to want this – and in some cases, demand it. But that was simply impossible given our daily jobs. Moderation was necessary to make comment threads worth reading, but the breadth of comments made moderation imperfect the best you could do.