77 minutes | Jul 16th 2019

Free Speech for Product Counsel

Many decisions that affect public discourse on online platforms are made before the first user logs on. Speech on the internet is shaped by platforms’ structural choices including: the length of permitted submissions; whether posts are permanent or disappear over time; how the content that users see is selected; the control granted to users over who sees their own posts; mechanisms for the reporting and removal of content considered offensive; and more. These choices can result in rigidly controlled discussions or free-for-all melees, in-depth analysis or the exchange of quick thoughts, and private discussions or public debates. How do concepts of freedom of speech play into these decisions, and how does that affect the advice given by counsel with respect to the development of new products? This session will explore these and other questions, including:

• What does it mean to design a product with values such as freedom of speech, privacy, etc., in mind? How do design choices with respect to privacy affect free speech, and vice versa?

• Which kinds of design choices are likely to chill the exchange of ideas? What forces – internal or external – drive a company to make these choices?

• What are best practices for product counsel attempting to balance a commitment to freedom of speech with other commitments and priorities their companies might have?

• Are legal principles such as the First Amendment irrelevant? To what extent have the judgments embodied in First Amendment doctrine been supplanted by other ethical considerations or the desires of a platform’s particular community?

• To what extent is it possible to build the highly subjective and fact-based standards on which free speech decisions often depend into technological tools such as content filters?

• What, if any, obligation does a tech platform have to consider the use/abuse of their products by government officials, either in terms of public access to government activity or the potential use of those products by the government to suppress citizens’ speech?

Jeff Hermes, Deputy Director, Media Law Resource Center (Moderator)
Ambika K. Doran, Partner, Davis Wright Tremaine LLP
Ben Glatstein, Asst. General Counsel, Microsoft
Alexis Hancock, Staff Technologist, Electronic Frontier Foundation
Jacob Rogers, Senior Legal Counsel, Wikimedia Foundation, Inc.