Deciding What Stays Up: Content Moderation, Platform Policy, and the Rules Nobody Voted For
By Casey Scott McKay ·
Every platform that hosts user content becomes a private regulator. The rules it writes are enforced against people who never agreed to them in any meaningful sense, and the enforcement is challenged from every direction at once. This article works through what actually governs that position: the federal immunity that protects both hosting and removal, the contractual layer that makes terms of service enforceable, and the emerging body of state legislation attempting to constrain moderation. It then covers the overlapping notice regimes for copyright, trademark, and illegal content, each of which carries different obligations and different consequences for getting it wrong. The second half addresses the operational questions — how policies should be drafted so a reviewer can apply them, what appeal processes need to contain, why enforcement records matter, and what transparency reporting has become. It closes with automated enforcement and the exposure that scale creates.
IP and Technology > Internet | Article | Published 26 May 2025 - Updated 2 July 2026 | Casey Scott McKay - marksy.us
Summary. Every platform that hosts user content becomes a private regulator, and the rules it writes are enforced against people who never agreed to them in any meaningful sense. This article works through what governs that position: the federal immunity protecting both hosting and removal, the contractual layer making terms of service enforceable, the emerging body of state legislation attempting to constrain moderation and the constitutional litigation around it, and the overlapping notice regimes for copyright, trademark, and illegal content. It then addresses the operational questions — policy drafting, appeal design, enforcement records, and transparency reporting.
Keywords: content moderation · Section 230 · good faith removal · terms of service enforcement · notice and appeal · transparency reporting · trusted flaggers · copyright takedown interaction · trademark complaints · state must-carry laws · NetChoice · coordinated behaviour · automated enforcement · moderator records · jurisdictional overlays
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