Buffalo Law Review

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The Oversight Board of Facebook (now Meta) has been described as a “court.” Acting like a judicial body, it adjudicates disputes about content moderation decisions of Meta. In some sense, the Board is a great experiment: it enables us, for the first time, to observe, analyze, and assess how private platforms can borrow the model of judicial review to enhance their governance, how the new platform laws have differed from and interacted with the old State laws, and what new principles, rules, and methods will emerge in this process of interaction, accommodation, and innovation. These developments constitute a crucial part of free speech jurisprudence for the Internet age.

This Article is the first piece that systematically and critically maps the jurisprudence of the Board in its initial three years of operation. First, the Board generally adheres to the European method, adopting a proportionality test and its permissive attitude toward speech regulation, while at the same time reconciling this approach with the American model by, for example, rigorously applying the “least intrusive means” requirement. Second, the Board tried to adapt both its procedural and substantive doctrines to the context of private moderation of online content, which is markedly different from governmental regulation of offline speech; several doctrinal tweaks have been devised in this process. Third, the Board has used various tools, such as information requests, continuous review, and policy advice to strengthen its supervisory power in its interaction with Meta.