GW Law Faculty Publications & Other Works

Document Type

Article

Publication Date

2025

Status

Forthcoming

Abstract

What speech should be allowed on social media platforms—and what speech should be prohibited—is a pressing and timely question. Given the recent changes in major social media platforms’ moderation of harmful speech—with the tacit blessing of a 2024 Supreme Court decision and the Trump Administration—and the European Union’s increased regulation of hateful speech and platform content moderation, a clash of these titans is inevitable.

This Article will examine the underlying forces that brought about these conflicts—including First Amendment, CDA Section 230, international, and EU law governing free expression, hate speech, and platforms’ rights and duties regarding content moderation. It will also analyze the recent changes in X’s and Meta’s hate speech content moderation practices and the impetus for those changes. It will examine the ways in which those platforms have swung from a hands-off approach to content moderation of hate speech, to more aggressive stances on moderating hate speech that are consistent with international human rights principles, then back to laissez-faire approaches. Instead of swinging dramatically from one end of the spectrum to the other to align themselves with the political mood of the country, platforms like Meta and X should re-embrace their earlier commitment to adopting content moderation practices that conform with widely accepted international human rights protections. Such protections are embodied in documents like the International Covenant on Civil and Political Rights, the Convention on Eliminating All Forms of Racial Discrimination, the UN Guiding Principles on Business and Human Rights, and the European Convention on Human Rights. The adoption of content moderation practices that conform with these widely accepted international human rights protections would allow these platforms to properly balance the expressive freedoms of members of the public against the right to be free from harmful, hateful, discriminatory expression online.

GW Paper Series

2026-13

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