Should Social Media Platforms Permit Violating Content that is “Newsworthy”?

Abstract

In 2016, Facebook received widespread global criticism for removing the iconic “Terror of War” photo (widely known as the “Napalm Girl” photo) for violating its rules on child nudity. To remedy that concern, Facebook introduced a general “newsworthiness allowance” to apply to some content on the platform even though it technically violates a rule. The “rarely applied,” ad hoc and ex post exemption has since been used in a range of cases to exempt violating speech—including violating speech by political figures. But should a social media platform allow speech that violates a rule to remain on the platform because it meets some threshold for “newsworthiness”? We argue that social media platforms should not apply such exemptions. First, as a procedural matter, we argue that ad hoc and ex post decisions to exempt certain people from platform rules rest in considerable tension with the rule of law, specifically the principle of legality. Second, as a substantive matter, we argue that the newsworthiness allowance is the wrong prescription for the right problem. The problem is that content moderation rules are often insufficiently nuanced and overinclusive. Instead of applying an arbitrary exemption, platforms should nuance their rules to allow for awareness raising, condemnation, and satire in categories of content to which the newsworthiness allowance might otherwise be applied. Third, we consider whether there ought to nevertheless be a narrowed newsworthiness allowance for violating speech by political leaders. People have a fundamental interest in finding out what their leaders think, especially when what they think is deeply misguided or even harmful, and this is particularly true in democracies. While this is an important interest, we reject the notion that a newsworthiness allowance is the right way to protect it. The interest is most propitiously protected by allowing news reporting on what politicians have said, not by allowing politicians to abuse platforms to cause harm.