The United States Supreme Court has it easy. No doubt their job is difficult, but at least they know what they should be doing: interpreting and applying the Constitution and other laws. Social media content moderators have a harder task. No one wrote and ratified a Constitution, no legislature passed Community Standards. Content moderators created Community Standards in resolving cases as judges did with the common law.
But content most American moderators lack the legitimacy accorded common law judges.
For example, most Americans think content moderators are biased. If content moderators were thought to be applying rules independent of their employers’ interests and their own political commitments, the task of judging online speech would become easier. International human rights law (IHR) seems to offer such independent rules. But can IHR be legitimate for billions of social media users? Legal professors Ilya Somin and John McGinnes raise interesting questions about the legitimacy of international law.
McGinnis and Somin distinguish between “domesticated” and “raw” international law. Congress and the president have expressly made “domesticated” international law “part of our law.” In contrast, “raw” international law “has not been endorsed by the domestic political process.” The authors see “domesticated” law as “largely unproblematic” because it has been accepted by Congress and the president through statute or treaty. “Raw” international law is different, and McGinnis and Somin are concerned that U.S. courts might nonetheless incorporate such rules into the domestic legal order.
McGinnis and Somin focus on the process leading to international law rather than the ensuing content. They find a “democracy deficit” in the processes that create international law. The deficit in question can be measured by the difference between the relatively democratic path to domestic law (and thus to “domesticated international law”) and the undemocratic process culminating in “raw” international law. They favor a presumption in the United States against incorporating the latter into the former because of the “democracy deficit.” Of course, social media standards are not domestic law. But if IHR suffers from a “democracy deficit,” it may be less likely to confer legitimacy on social media standards.
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