I’m grateful that Will Rinehart has taken pains to respond not only conversationally to our reactions to his initial essay but also with a more essayistic effort to try to frame the role of social media in a larger theory of democracy. I’m going to respond to all of these efforts here, because I think, even taken together, Will’s three contributions fall short in addressing both (a) the overarching question of whether social media are “broken” and (b) the equally important question of how we should think about social media in the context of our democratic values.
In thinking through my reactions to Will’s three pieces, I’m drawn back to the contributions of my fellow contributors to this colloquy, John Samples and Kate Klonick. John’s response essay is framed in terms of Thomas Emerson’s helpful taxonomy of the functions of freedom of expression, first spelled out here and later explored in his subsequent books. Kate’s response drew upon Nicholas Tampio’s articulation of the value of democracy as well as Jack Balkin’s 2004 law review article arguing that freedom of expression – a bigger set of interests than just talking about politics – needs to be affirmatively protected, not just by the courts, but also by the legislators, administrative agencies, and technology players who increasingly shape the space in which digital speech takes place.
My own initial response also drew upon Emerson and Balkin, though I’ve drawn primarily on later works by both scholars, and I urge readers who may be diverted by Klonick’s and Samples’s discussions of Balkin’s 2004 article to consider how Balkin’s free-speech thinking has evolved since then, starting here. So I was interested to see how Will would respond to what I think all three of his respondents have in common. Specifically, we all addressed the question of how to root our understanding of social media in First Amendment theory and our theory of democracy generally.
I think Will’s lead essay and his responses, taken together, gesture in the direction of a theory of democracy and social media that simultaneously asserts a “thin” assessment of their value while dismissing their real importance. As part of his dismissal of the importance of the democracy/free-expression/social-media nexus, Will makes a number of rhetorical moves, all of which I take to be aimed at marginalizing the larger perspective on social media that, in different ways, John, Kate, and I tried to import into the discussion question of whether social media are “broken.”
I believe that our three initial responses to Will’s lead essay share a resistance to the constrictiveness of Will’s focus on whether “fake news” is a problem that somehow tells us something about social media. Here’s why I think the narrowness of Will’s initial approach and the dismissiveness in his follow-up responses leaves me unsatisfied. Basically, if you read a lot of the recent mainstream opinion writing about social media – not just op-eds but also recent books like Jonathan Taplin’s and Franklin Foer’s – it seems clear that some would-be opinion leaders are trying to gin up a consensus that, yes, social media are “broken” – that there’s something going on with regard to social media that needs to be fixed.
Unsurprisingly, the critics who are advancing this argument are unswayed by research that seems to show that “fake news” may not have had an appreciable effect on the outcome of the 2016 elections. The critics argue that in a presidential election as close as the 2016 election was, even small distortions in voter response, possibly attributable to “fake news,” may have altered the outcome, and that the research that casts doubt on this hypothesis is ambiguous at best. This argument isn’t crazy on its face. I’m skeptical whether “fake news” had such an effect in the last election, but I also think reasonable people can disagree about that, and that reasonable people can reasonably worry whether internet media will help or hurt upcoming elections.
So it seems clear to me that the concern about “fake news” and about other possible negative impacts of social media are going to be with us for a while. We can’t just say “social media didn’t screw up the 2016 election,” dust off our hands, and walk away.
But it’s hard for me to escape the impression that this is what Will has been trying to do. Let me explain my reasoning here.
In my view, Will’s first essay included a couple of theses. First, he seems to argue that American democracy is rooted less in voter access to accurate information (he dismisses this as part of the “folk theory of democracy”) than what might be called (presumably irrational) partisan affiliation:
From the very founding of the United States until the late 1890s, individuals weren’t expected to make rational choices when voting. Not surprisingly, the press was explicitly partisan.
Newfangled reforms like those championed by the Progressive movement, together with the rise of emphasis on journalistic “objectivity,” apparently led to the supplanting of this political tribalism with the “folk theory of democracy,” which is dismissible because it doesn’t give adequate weight to expertise. (Will quotes Michael Schudson here about the “quest for a language of public life that reconciles democracy and expertise.”)
A second thesis in Will’s first essay was that the available research doesn’t support the idea that “2016 was the election of social media” and that, in any case, people mainly use social media for “pointless babble” rather than to inform themselves or to argue politically.
In different ways, John’s, Kate’s, and my responses tried to offer stronger cases in defense of social media than what Will provided. But it seems to me that Will’s initial response and his follow-up essay attempted to dodge those defenses altogether. Instead, Will raised the issue that democracy is “an essentially contested concept.” It seems possible that Will was aiming to characterize the extent to which the responses to his first essay disagreed as one that’s rooted in different notions of democracy, so that if the three response essays differ with his reasoning, it’s because we’re using a different, broader idea (or ideal) of democracy than Will uses.
But taking that approach doesn’t make the case for dismissing these ideas or ideals. It especially doesn’t make the case for dismissing Jack Balkin’s 2004 law review article as “the kind of language game with democracy that [W.B. Gallie] lays out.” To understand Balkin’s article as playing a “language game” at all is to mischaracterize the century of First Amendment scholarship on which Balkin draws, and to which he was responding. Specifically, Balkin’s article expressly addresses what might be called the Alexander Meiklejohn approach to the First Amendment, one in which the importance of freedom of speech is, centrally, its importance to democratic government – to making politics and elections work properly in a democracy. Like many other constitutional lawyers (including yours truly) Balkin is critical of Meiklejohn’s narrow theory of the First Amendment (that it’s primarily about politics).
But even Meiklejohn’s comparatively narrow First Amendment theory, which focuses on informing citizens about political choices, is broader than Will’s. As I read him, Will thinks the notion that an accurately informed voting population is valuable is a kind of populist, “folk” myth. Ironically, Balkin’s push for understanding freedom of expression more broadly in the digital age is as much a challenge to the free-speech-for-good-politics idea as Will’s dismissal of the “folk theory of democracy” is – it’s just coming at it from the other direction. This is the same thing that Thomas Emerson’s theory, which informs John Samples’s response essay, does.
Understanding the importance of free speech broadly, as Balkin’s 2004 article does, is something that, in my view, you also see in John’s, Kate’s, and my initial responses. I think Will recognized, after drafting his first response, that our essays needed a more substantive response than an implicit dismissal, and that this recognition is what has fueled his longer, second essay.
My view is that Will’s first response more or less dodged the arguments that freedom of expression, including how it is exercised in social media, has democratic value much bigger than how it affects or doesn’t affect elections. His longer essay, his third contribution after his lead essay, and initial response attempt to challenge John’s, Kate’s, and my responses more squarely. But in doing so, Will fundamentally mischaracterizes both the implicit and express criticisms as representing what he believes are naïve “emancipatory visions” of the internet. Will attributes one “version of the emancipated world” to Ithiel de Sola Pool, but I think Pool’s magnum opus is properly read as a clear-eyed assessment of where government policy can either enhance freedom (as it has done with the First Amendment and with common carriage) – or undermine freedom (as it has done in broadcasting) rather than serving as a standalone dream of how wonderfully the internet might emancipate us.
I had to wince at that point when I came across the words “emancipatory visions”; I could see where Will was going next. And, sure enough, Will invokes my friend Howard Rheingold’s observation that the early days of internet activism were informed by, inter alia, “granola-eating utopians, the solar-power enthusiasts, serious ecologists and the space-station crowd, immortalists.” And then, inevitably, he quotes my friend and former colleague John Perry Barlow’s “now notorious” Declaration of Independence for Cyberspace.
Here I must share some late-breaking news from the 1990s: the actual cyber-activists of that period (and here I must include myself) did not interpret Barlow’s cri de coeur as political philosophy. Barlow, best known prior to his co-founding of the Electronic Frontier Foundation as a songwriter for the Grateful Dead, was writing to inspire activism, not to prescribe a new world order, and his goal was to be lyrical and aspirational, not legislative. Barlow wrote and published his “Declaration” in the short days and weeks after Congress passed, and President Clinton signed into law, a telecommunications bill that aimed, in part, to censor the internet. No serious person – and certainly not the Electronic Frontier Foundation and other organizations that successfully challenged the Communications Decency Act provisions of that bill – believed that cyberspace would be “automagically” independent of the terrestrial world and its governments. Barlow’s “Declaration” is best understood, as Wired described it two decades later, as a “rallying cry.” Similarly, nobody thinks “The Star-Spangled Banner” or “America the Beautiful” or “This Land Is Your Land” is a constitution. (And of course the original Declaration of Independence isn’t one either.)
I confess that I invoked Barlow’s incantatory rhetoric on a single celebratory occasion. But I did so precisely because I believe a declaration of independence by its very nature should not and cannot be interpreted as a prospective theory of governance. (Compare: “All men are created equal.”) So when I delivered a public speech on the day we celebrated a unanimous Supreme Court victory for the First Amendment in cyberspace, “[n]ow is the time to think about what kind of First Amendment we will shape for ourselves and for those who come after us.” In other words, the hard work of protecting freedom of speech on the internet was still just beginning, and we still had the task before us to figure out how the rule of law would apply there. In any case, just as Barlow’s rallying cry wasn’t political theory, my citing it in a celebratory speech wasn’t either.
As a pragmatic matter – as distinct from the “emancipatory vision” Will dismisses – the very reason we mounted the constitutional challenge to that legislation is precisely because we believed that freedom of expression in cyberspace was utterly dependent on what governments in the physical world might do or attempt to do to in pursuit of silencing troublesome speech.
Will oddly invokes the Free Press as another exemplar of the “emancipatory bent,” quoting a 2008 statement from Free Press’s website that I will quote more fully here:
But whether the Internet remains open, diverse and democratic depends largely on policy decisions. If past is prologue, the prospects aren’t good. Over the past 100 years, whenever a ‘disruptive technology’ – such as radio or television broadcasting – sparked democratic participation in media, dominant forces reacted by creating rules to lock it down, stifle public participation and re-assert their authority.
It is difficult to understand what point about “emancipatory visions” that Will is trying to make, given that he’s quoting Free Press right after quoting Barlow’s Declaration of Independence for Cyberspace. Sure, Barlow can be interpreted by (absurdly) literal readers as saying a bunch of factually untrue things – for example “Our identities have no bodies, so, unlike you, we cannot obtain order by physical coercion” – which most adults will understand to be an exercise of Barlow’s poetic license.
But what the Free Press says regarding the disruptive media technologies and the legislative and regulatory responses to them is indisputably, factually true. Media scholars of different political persuasions actually agree that this has been a common governmental reaction to new mass-media platforms. My favorite account of the paroxysms of broadcasting regulation – including the thinness of the theoretical justifications of that regulation – was written by one of my law-school professors, Lucas A. Powe. It seems possible that Will wants to rope in Free Press here as part of his dismissal of “emancipatory visions” because Free Press is openly advocating the net neutrality regulations that Will opposes. But the original “emancipatory vision” of Barlow’s Declaration of Independence was one of denying terrestrial governments’ ability to regulate the internet. Regardless of one’s opinion of net neutrality, it’s quite clear that net-neutrality advocates actually believe terrestrial governments do have jurisdiction and do have power – not, as Barlow lyricizes, that they don’t.
In the circumstances, it seems possible that what Will views as “emancipatory politics” is a simply an optimistic vision that Will doesn’t agree with. And this brings us precisely to Will’s parachuting in the estimable Adam Thierer’s insightful 2010 essay about the oscillations between “technological pessimists” and the technophile “pollyannas.” I love Thierer’s essay not least because he underscores how the techno-pessimist philosopher Neil Postman, citing Plato’s Phaedrus in his 1992 book Technopoly, was “fancying himself a bit of a modern King Thamus.” King Thamus, you may recall, was the king whom Plato depicts as opposing the invention of writing. Of course Neil Postman relied on the invention of writing to compose Technopoly.
Thierer in his essay, and in many other writings and appearances since, has called for “pragmatic optimism,” which Will characterizes as “a sensible middle ground position.” I think so too – and “pragmatic optimism” is pretty much the only approach you can use if you’re a civil libertarian who seeks to defend freedom of speech on the internet and elsewhere. You have to be pragmatic in order to recognize clearly where the challenges to internet freedom and privacy come from, and you have to be optimistic just to get up in the morning to address those challenges – in cases, for example, or in legislation or regulation. And although he counsels pragmatism, Thierer makes no secret of which party he belongs to: “On balance, I believe the optimists generally have the better of the argument today.”
But even the “sensible” notion of pragmatic optimism – an approach that I think has informed my own work on internet law and policy over the last three decades – is too optimistic for Will’s taste. Although, as he writes, “Thierer is right to be optimistic about the possibilities of new technologies,” “[internet-based] technologies are still judged by those emancipatory visions formed at the early stages of technology.”
I confess I have at this last sentence many times tried to figure out what it means, or how Will means to be taken to dissent from Thierer’s pragmatic optimism or from mine. Plus, if “emancipatory visions” are the dominant paradigm in evaluating the internet, how do we explain the flood of writing this year ranging from Al Franken’s last major op-ed as senator to Jonathan Taplin’s anti-tech-giant screed and Franklin Foer’s blaming the loss of his sweet gig at The New Republic on the internet companies’ undermining of “the culture industries”? Indeed, if “emancipatory politics” is somehow today’s dominant paradigm, why are we even discussing here whether social media are “broken”? Why isn’t our consensus reality simply that the internet and social-media platforms are an unalloyed blessing?
I think the answer to this question has to be that many of us recognize a moral panic occurring in our culture (and in other cultures around the world) about the internet and social media. It’s a moral panic that both predates last year’s election and is not particularly rooted in that election. I have begun to write about that moral panic here, and Adam Thierer’s recent review of Foer’s book is titled “Franklin Foer’s Tech-Panic Manifesto.” So if we’re going to talk about whether social media are “broken,” we have to do so in express recognition of the moral panic about social media that’s happening. We have to ground our arguments in theories that speak positively of what social media have given us, not merely dismissively with the notion that this “pointless babble” has probably not done any great harm.
To his credit, Will tries to break some new ground in terms of a positive defense with what he calls “the capabilities approach,” which he characterizes as both an “evaluative framework” that “isn’t a series of answers, but a more formalized series of questions.” The capabilities approach, he says, is one of evaluating “various aspects of individual wellbeing” and, in that light, “a tool to design and evaluate policies.” This is the point where I found myself shaking my head, because the theory that Will is trying to formulate here already exists in First Amendment theory. Specifically, it’s what Thomas Emerson articulates in the scholarly writing that John Samples drew upon for his essay. And it’s what Kate Klonick draws upon when she cites Jack Balkin’s law-review article (which criticized the limitations of the Meiklejohnian politics-centric view of the First Amendment). As both Emerson and Balkin demonstrate, there’s no need to reinvent the wheel when it comes to harmonizing free-speech theory with individual human needs. Contrary to Will’s suggestion, Balkin does not “appeal to the authority of democracy to say that individuals should have a say in the development of culture.” Instead, he’s saying that participation in the development of culture just is a part of democracy, drawing not least upon the First Amendment theory underpinning our two-decade-old victory in the Supreme Court case Reno v. ACLU (1997) – a case that’s still a triumph, it must be said, of pragmatic optimism.
I can’t help finding myself wishing, after reading and rereading Will’s contributions, to find stronger defenses of democracy, of freedom of expression, and of social media than the ones he offers us. It seems clear that Will doesn’t think much of democracy itself. (He’s right that we need to value “expertise,” but the idea that voters need to be informed and have something to contribute to their governance is something he apparently accepts as a “folk theory of democracy.”) And it seems just as clear that he thinks freedom of expression in social media doesn’t mean much. He feels compelled to elaborate on his earlier declaration that “What people do online is engage in the pointless babble that is so often derided.” In his follow-up essay, Will allows (without expressly admitting) that his generalization may apply only to “most” people. And he clarifies that the “pointless babble” isn’t, strictly speaking, “pointless,” since “these gestures are simply an example of what linguists call ‘phatic communication.’” In other words, social media expression is not totally pointless because it might amount to communications like grunting or nodding to signal your shared presence with someone, or like saying “how’s it going?” as a greeting when you’re not really seeking factual declaration in response.
I don’t think there’s any serious dispute that some subset of social media expression is “phatic” – indeed, the early “poke” function on Facebook was essentially nothing more than that. Still, I don’t think I’m in the grip of any “emancipatory vision” when I insist that actual, meaningful, valuable, non-phatic communication – including both political (Meiklejohnian) and cultural (Emersonian or Balkinian) take place every day on social media platforms. So in my view, defending social media and internet expression as “phatic communication,” taken together with the implicit dismissal of the need for an informed citizenry as part of a “folk theory of democracy,” strikes me as no defense at all.