Note to readers: I first published the blog post below in 2022, after the Fifth Circuit ruling. I thought I’d repost it in light of the Supreme Court’s oral argument in the case next week. —Ori
Reading of the decision of the Fifth Circuit Netchoice vs. Paxton takes me back to the old days of the Volokh Conspiracy. A little context: back when we were at volokh.com, we introduced open comment threads. For a few years, I spent more than an hour a day, every day, moderating the Volokh Conspiracy comment threads. Stopped by after we moved in The Washington Post in 2014, where comment moderation was up to them. I’m very happy to no longer do comment moderation. But my experience moderating comments on volokh.com it left a lasting impression.
I think three of these impressions might be relevant to reflect on NetChoice.
First: It is a strange rule of human nature that most people moderated in an online forum feel, with great certainty, that they are being censored for their beliefs. Few people think they have gone too far or broken the rules. Moderation is usually seen as the result of prejudice. So the liberal commenters were convinced that I had deleted their comments or even banned them because this is a conservative blog and we were afraid that liberal truths would pierce the darkness and expose the false claims of conservatives. And conservative commenters were completely confident that I had 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 such as day after night.
Second: Content moderation always reflects the moderator’s message. My goal in moderating comments on the Volokh Conspiracy was only to keep discussions civil. My thought was that if you can keep comments civil, you will not only encourage better comments but 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 interesting places to look for perspectives on our posts. But moderation always involves some kind of message. It implies a certain value or judgment that the site (or perhaps just the lead moderator) has that it wants to promote. For example, when I moderated uncivil comments and commenters on volokh.com, I didn’t care whether 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. This was the value we (or I) had. It is a process value, but still a value. Moderation has always been an effort to promote that underlying value we had.
Third, perfect comment moderation is impossible, but you can’t let the perfect be the enemy of the good. I wrote above that many moderate commenters believed they were being censored for their beliefs. A corollary is that many commenters had examples of comments left on the other side, seemingly unmoderated, that to them demonstrated bias. If you deleted a comment because it was uncivil, it was normal to hear cries of indignation months ago jukebox grade had a substantially similar comment somewhere still active, so under the principles of due process and Magna Carta it would be despicable to moderate This comment Now. The problem was the scale. Back then we could have 20 posts a day, as there were a lot of short posts. An average post might receive (say) 100 comments, and some receive many more. There were around 2,000 comments to read every day. You would need full-time moderators to try to moderate them all, with some sort of legal process to judge individual comment moderation decisions. Moderate commentators often seemed to want it and, in some cases, demand it. But it was simply impossible given our day jobs. Moderation was necessary to make the comment threads worth reading, but the sheer scale of the comments made moderating the best you could do imperfect.