An intriguing essay by evelyn douek suggests that the “juridification” or “formalization” of content moderation — think of the tribunals (e.g., Facebook’s Oversight Board) that issue precedential decisions as if to mimic common law processes and procedures — is quixotic. Besides the unmanageable amount of speech online, companies operating these tribunals have a conflict of interest, predicating their business model on the circulation of discourse that they also purport to regulate.

Nathaniel Persily avers that the “internet and the rise of social media require the creation of new legal categories even as we struggle to fit these new institutions and relationships into old conceptual boxes.” He weighs strong and weak arguments for treating social media companies as common carriers providing public accommodations.