Recent years have witnessed proliferating calls for technology and social media companies to more aggressively police the speech of their users. Social media companies have drawn criticism both for being too aggressive and too lax in censoring their users’ speech. While this controversy is typically framed in terms of the extent and significance of principles of free speech, we re-frame the debate in terms of a contrast between ex ante prevention and ex post punishment. Ex ante prevention operates as a form of censorship, preventing objectionable speech from occurring, whereas ex post punishment operates by censuring objectionable behavior after it has materialized. Content moderation operates in an ex ante manner by preventing targeted speech from reaching an audience, whereas ex post remedies are more diffuse, ranging from informal disavowals and condemnatory statements by other users or the platform itself to “de-platforming” offenders to, in extreme cases, formal legal actions.
We identify four factors that bear on the choice between ex ante prevention and ex post punishment of online speech. These are the closeness or fit between a substantive type of wrong and its codification in a rule; the potentially asymmetric costs of precaution; deliberative transparency; and the value of normative adaptation. Since these factors do not necessarily point in the same direction, the choice between ex ante prevention and ex post punishment of speech requires a substantive value judgment. That said, we argue that, in general, ex ante prevention is most appropriate when applied to tightly specified, high-stakes expressive acts, subject to stable and widely agreed upon norms.
* University of Richmond.
** Hebrew University of Jerusalem.
We are grateful to participants in the criminal law in online spaces workshop for thoughtful and extensive comments on an earlier draft.
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