About this Issue

“Fake news” is the buzzword of our time. Yet what is the actual power of fake news? To what degree does it permeate our information networks, and with what effects? What are the remedies, legal or otherwise, that should be brought to the problem? And will we ever agree on a set of reliable sources or reliable facts?

Our lead essayist this month is Will Rinehart, who serves as Director of Technology and Innovation Policy at the American Action Forum. Rinehart urges caution: Fake news was less influential in the 2016 election than was initially reported, and even social media itself isn’t as important as either its critics or the social media platforms themselves may want to claim.

Lead Essay

Fake News and Our Real Problems

The American electorate enjoyed a bountiful crop of news reports and Congressional hearings this fall regarding fake news spreading through Google, Twitter, and Facebook. Politicians joined with journalists and scholars from across the political spectrum to chide these platforms for their role in spreading disinformation. No longer was social media the tool that had helped to spark the Arab Spring and launch the Black Lives Matter movement. In spreading fake news, these platforms had become an affliction for democracy.

To be sure, communication tools and democratic practices have long co-evolved in complex ways that cannot be easily untangled in this essay. Yet the current conversation surrounding fake news, social media platforms, and democracy shows clear deficits. For one, worries about disinformation on social media arise from a relatively modern belief that democracy needs informed voters. While the informed voter theory of democracy might provide a frame to criticize platforms, it doesn’t have much purchase in explaining what happened in the 2016 election. Indeed, by focusing on the spread of fake news on social media, more fundamental issues in American democratic practice have gotten overlooked.

As Professor Michael Schudson has put it, American civic life has long been on a “quest for a language of public life that reconciles democracy and expertise.” In this essay I will argue that we need to redirect attention to the institutions of governing and away from criticisms of institutions of voice.

To fully appreciate this argument, it helpful to understand first where demands for information fit into conceptions of democracy.

Democracy Is Rooted In Demands for Information

Modern conceptions of democracy place a heavy premium on information. Voting is central feature of democracy because it ties the electorate with representatives. Through this mechanism, citizens put into place elected officials that are then expected to translate constituent preferences into public policy. In turn, this folk theory of democracy demands that citizens keep informed of their representatives’ actions so that when agendas no longer align, the representatives is replaced.

Yet this collective story about democracy is a creature from a specific time in American history, the Progressive era. From the late 1890s to the 1920s, a series of political shifts occurred just as the mass-produced newspaper expanded into national markets to help usher in a now dominant criterion for democracy.

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. By the mid-19th century, newspapers and political parties were engaged in an intimate dance. Parties provided the capital to start or sustain local newspapers, and in turn, the press was the voice of the party. When it came time to vote, newspapers would print ballots already filled out, votes were public, and if elected, voters would receive patronage in the form of jobs and other compensation.

Horace Mann’s description of the 1848 election gives us a taste of that era: “The press showered its sheets over the land, thick as snow-flakes in a wintry storm. Public and private histories were ransacked, to find proofs of honor or proofs of dishonor; political economy was invoked; the sacred names of patriotism, philanthropy, duty to God, and duty to man, were on every tongue.”

By the 1890s, that world was on the wane. The older system of political organization and favors were swept away. Civil service was reformed, and patronage was eroded, leading to more bureaucratic forms of government and heightened calls for rationalism in political processes. The expansion of government functions and the proliferation of agencies at all levels opened up more opportunities for policy differentiation, which lead parties to publish policy platforms for the first time.

Voting also became a private affair. Louisville, Kentucky was the first U.S. government to adopt the Australian ballot in 1888. Just four years later, 32 states had made the move to secret ballots. American civic culture changed because voting turned personal. Citizens reacted as one would expect: there was a new demand for information about politics so that choices could be made.

Simultaneously, newspapers expanded their reach to become truly national endeavors. The number of journalists expanded with the rise of national papers, leading the industry to professionalize. Because journalists wanted to establish their own legitimacy and newspaper owners wanted to capture more readers, an ethic objectivity was increasingly adopted.

By the 1920s, democracy took on a new dimension that relied heavily on new forms of knowledge, especially the national newspaper. Michael Schudson, a scholar of journalism, summed it when he noted that “The model citizen, in the reform vision, would be disciplined enough to register, educated enough to read, thinking enough to choose candidates with little or no party guidance, and docile enough to leave many matters to the experts.”

Why Social Media, Informed Voters, and Democracy Are Intertwined

The informed citizen model provides an important pillar on which American democratic legitimacy is built. This ideal also helps to explain current worries about fake news, as well as an earlier anxiety about the relationship between platforms and democracy. In 2014 and 2015, scholars like Jonathan Zittrain, Zeynep Tufekci, and Paul Brewer weren’t worried about the presence of fake news as much as they were concerned about how information was presented in the feeds and search results of users.

During the 2010 election season, researchers at Facebook ran a series of tests that showed users an “I Voted” sticker at the top of their site. Then, the authors connected voter turnout data with their own information on who was shown the sticker to find that “users who received the social message were 0.39% more likely to vote than users who received no message at all.” The evidence was unmistakable and statistically significant; Facebook could shift votes.

Never mind that rain decreases election turnouts by about 0.8 percent; scholars and journalists used this study as a jumping off point for reports about our democratic demise. One strain of these narratives focused on Facebook since they had the power to curate your News Feed based on the wedge issues that you cared about, pushing you to vote. In the other line of apprehension, Google’s executives were made the villains since they could decide which candidate is best for us if they tinkered with the search results. Countless scenarios were imagined, and in each the sentiment was similar. Platforms had the power to change the flow of news and undermine a true political conversation, thus tipping the election.

The 2017 narrative about fake news relies on a similar appeal. Fake news taints the deliberation process, muddying the pristine information ecosystem that is needed to sustain democracy. Only those who are properly informed of the issues can vote correctly, and as a corollary, those that voted incorrectly are clearly uninformed.

That Donald Trump’s victory seems to have come out of nowhere furthered this suspicion. In the days leading up to the vote, many on both the left and the right believed that Clinton would win. The Princeton Election Consortium predicted Clinton had a 95 percent chance of winning. Yet when the results came in, the tenor had changed. One Washington Post headline captured the sentiment: “Donald Trump wins the presidency in stunning upset over Clinton.” Something was lurking in places that very few had accessed, and it tainted the entire democratic enterprise. That something was fake news.

But the Facebook fake news problem has been revised significantly from the early, wild predictions. In one widely shared report just after the election, BuzzFeed found that fake election news stories generated more total engagement on Facebook than top genuine election stories. Election content from the major outlets easily outpaced fake election news in the months before the vote, the study uncovered. Then, as the election drew closer, fake content on Facebook skyrocketed and surpassed the content from major news outlets, according to BuzzFeed. Yet the truth was far different. As Facebook officials recently testified before Congress, the actual amount of fake news “equals about four-thousandths of one percent (0.004 percent) of content in News Feed, or approximately 1 out of 23,000 pieces of content.”

Moreover, there isn’t good evidence that 2016 was the election of social media. Trump supporters largely got their news from Fox News. Clinton voters, on the other hand, didn’t coalesce around any one single source. As Pew noted, “The digital news publishers that played prominent roles in the campaign did not appear to serve as main news sources for either Trump or Clinton voters.”

While it has been widely reported that 62 percent of U.S. adults, a majority, now get their news from social media, the statistic is hugely misleading as well. When you look at the report where this information is sourced, social media is the least likely source among all of the other potential sources for people to get their news. People get their news from all kinds of sources, including newspapers, the radio, local news, cable news, and websites.

Perhaps social media provides the platform for political deliberation. Again, surveys find that it is rare for users to discuss, comment, or post about politics. Only about 9 percent of social media users do this consistently, while nearly seven-in-ten indicate they hardly ever or never engage in politics online. Those who do go online to discuss politics are nearly guaranteed to be more partisan and thus unlikely to change their position. Social media networks don’t seem to be as ideologically homogeneous as some have worried, meaning that people tend to confront other perspectives quite often. Instead, most political conversations arise in casual settings with acquaintances.

What people do online is engage in the pointless babble that is so often derided. They go online to express sociability and maintain bonds, not debate politics. Snapchat isn’t built on political rants, it is built on videos and pictures of family, pets, and the sweet banality of daily life. Much more social media is like this than we tend to imagine.

Where Social Media Fits in Democracy as Practiced

Given how many years these tools have been available, it is a bit paradoxical to think social media is such an imminent threat to democracy. Washington does show characteristics of being dysfunctional, but as Jonathan Rauch has detailed the culprit is well meaning reform efforts that have dismantled our intricate, informal system of political intermediation. For years, these informal systems worked to hold politicians accountable to one another, but intermediaries’ influence has been on the wane, pushing politicians, activists, and voters to be become more individualistic in their aims and ultimately unaccountable. Communications tools have opened a space for new voices to add items the agenda, but the fundamental tension that Schudson highlighted almost two decades ago still remains. We still need a “public life that reconciles democracy and expertise.”

Two recent examples help to illuminate what expertise means in the digital world. The USA Freedom Act, which halted parts of the bulk collection program that Edward Snowden unearthed, got passed because a group of dedicated advocates and industry groups used social networks and countless media outlets to bring about change. The bill did get compromised, but it hasn’t been reopened for negotiation. On the other hand, the issue of network neutrality has steadily become more vitriolic with every year. One could imagine a slightly different political landscape where the intense pressure was directed toward Congress to pass a law, not toward the Federal Communications Commission (FCC). Indeed, it is striking that interest group pressure has squeezed the FCC, which is an outgrowth of the President and was never likely to change course. While the two different campaigns used social media to get out the message, the issues have been adjudicated in completely disparate ways, likely due to the breakdown in informal social intermediaries.

Sometimes disinformation will be spread on social media. Other times vitriolic language will accompany a changeover in policy position. These aren’t problems for democracy. Instead, when institutions cannot direct these concerns, and solve them, that is a problem for democracy.

Response Essays

Social Media and the First Amendment’s Values

I agree on several points with the essay by Will Rinehart. He rightly criticizes the most extreme concerns about social media expressed since the 2016 election. I prefer to supplement his essay rather than rebut it.

I would like address our common question “Is Social Media Broken?” by drawing on Thomas Emerson’s classic work Toward a General Theory of the First Amendment. This book first appeared the year John Kennedy died. Yet Emerson spoke for more than Camelot. His first footnote referred to Milton, Locke, Jefferson, Madison, Mill, and many other free speech luminaries of the previous three centuries. Emerson sought to summarize the traditional case for free expression. If his ideas seem ill-equipped to resolve information age problems, perhaps the wisdom of the ages has run out, a proposition that merits our attention.

Emerson identified four “values sought by society in protecting the right to freedom of expression,” namely individual self-fulfillment, attainment of truth, participation in decisionmaking, and maintaining a healthy balance between social stability and change. These values offer a substantive means of considering our question. We should be prepared to admit that these values may conflict both in theory and when applied to the novel realm of social media. Perhaps they do not point toward a single affirmation or denial to our question. The internet’s youth makes it difficult to offer a complete assessment of its impact. I hope here to use Emerson’s framework to provoke as much as persuade.

Individual Self-fulfillment

Emerson remarked that Western thought assumes that “the proper end of man is the realization of his character and potentialities as a human being.” This implies that every person has “the right to form their own beliefs and opinions” along with a right to express both. This path toward self-realization demands the freedom to know and speak, and makes society a servant of individuals rather than their master.

On this front, social media is an unalloyed good. Not since the invention of the printing press have we seen such a radical expansion of the individual’s capacity for self-fulfillment through self-expression. Until just a few years ago, the cost of speaking scaled quite rapidly with audience size. In order to address anything larger than a suburban dinner party or passersby on street, one had to book a hall, compete for a number of limited timeslots on a public access television program, or devote huge resources toward developing specialized credentials. The larger your intended audience, the greater the opportunity cost. The internet, and social media in particular, has leveled this playing field. A speaker may address many as easily as she might talk to one. In this new environment, the reach of a speaker is limited only by the attention of prospective listeners.

Participation in Decisionmaking

Emerson believed free expression demands “an open discussion which is available to all members of a community.” Over time, this community has come to comprise all members rather than an elite, in part because each person has right to individual self-fulfillment.

Here too the case for social media seems strong. To paraphrase Michael Barone, in 1971 the headline on the New York Times became the first story on the CBS Evening News, the former read by the governing elite and the latter watched by almost everyone else. Gatekeepers profoundly shaped what Americans talked about, and in lesser measure, what they thought about what was talked about. Now the gatekeepers are weaker though not impotent; the Times, at least, still matters a lot. It may be said that the gatekeepers of the past enforced norms that fostered better speech and a healthier debate than we have now. Perhaps, but their decline has meant more people engage in speech on public affairs. Should we say that more participation worsens our public debates?

Maybe so. In a world overseen by gatekeepers, Emerson called for more participation. Some groups though - Nazis come to mind - were more marginalized in, than banned from, the public sphere at the time he wrote. Such marginalization was considered valuable because most of the elite had been told by early studies of social psychology that the mass of Americans could easily embrace the far right, thereby ending liberal democracy. That fear of the average American (or at least, some average Americans) persists among our elites today.

Nazis seem to be doing better now than in the past. They are more visible and perhaps better coordinated in their activities. Yet they remain marginal in American politics in part because their surprising emergence evoked tremendous condemnation. If we doubt that Donald Trump is Hitler, as I think we should, most Americans do not seem drawn to the Nazi cause. Groups can be marginalized by condemnation and publicity as well as by fretting gatekeepers.

Cass Sunstein argues that social media precludes a rich, public debate. People avoid contrary views on social media because they act as consumers rather than citizens. A genuine debate requires exposure to the other side, whereas social media offers only the #DailyMe. For Sunstein, social media both increases participation and worsens public debates. Yet the citizen within may not want the revealed wants of the social media consumer. As a reader of Sunstein would expect, the government can nudge the consumer toward becoming a citizen. The real person – the citizen/consumer – apparently cannot do that on their own. But our commitment to freedom of speech has assumed that individuals interacting socially through argument can meet the tests of citizenship. It also assumes they care about that aspiration. Why won’t the private governors of social media respond to those aspirations? At a minimum, given the known risks of government oversight of speech, private governance should be allowed to continue to evolve.

Attainment of Truth

Free expression, Emerson averred, is also “the best process of advancing knowledge and discovering truth.” By protecting speech, the government assures that citizens have different views to consider. Indeed, free expression demands a lot of citizens; they are called upon to sort out the true from the false. Following John Stuart Mill, Emerson remarked that discussion must be open “regardless of how false or pernicious” the new opinion appears to be. The new opinion might be true or partially true, or if false, we benefit from refuting it and in the process rethinking and retesting the accepted opinion.

The elimination of the old gatekeepers comes with its own costs. The supply of speech now far outstrips any individual’s attention. Hyperbolic, attention grabbing proclamations may initially win out over well-reasoned arguments. If people want to hear stories which confirm their biases, some speakers will cater to that demand. It remains to be seen if, in the long run, hollowly self-aggrandizing rhetoric can long win out when its consumers find themselves misled time and time again. This concern aside, fierce competition is exactly what we expect to see when barriers to entry are drastically lowered.

What about “fake news”? The question should be whether fake news dominated political speech. Did the open entry afforded by social media lead to many people embracing falsehoods? Rinehart suggests reasons for doubt, and a recent study found “no support for the hypothesis that the internet was instrumental in determining the 2016 election outcome.” Nathaniel Persily’s earlier conclusion that “we do not yet know how big an effect fake news had on the 2016 election” remains nonetheless defensible. We perhaps shall never know given the complexity of identifying such effects. But we have reason for caution in our conclusions.

Persily argues that social media companies will cope poorly with “fake news” and other problems because they seek profits rather than democratic values. But this view assumes that in the longer run the customers of these companies will not want a platform free of gross falsity. Here the difficulty will be distinguishing what customers want and what members of Congress desire. Private governance of social media in response to customers’ concerns is legitimate; private responses to public threats are not.

We must also avoid discounting the ways in which a more open media environment itself may aid the search for truth. Individuals, motivated either by general hostility to error or partisan allegiance, can instantaneously fact check anything said by anyone else. While letters to the editor and requests for correction relied on editorial goodwill, a corrective tweet may be immediately seen by everyone.

Balance between Stability and Change

Emerson claimed free expression helps maintain “the precarious balance between healthy cleavage and necessary consensus” in a society. In contrast, “suppression of expression conceals the real problems confronting a society and diverts public attention from the critical issues.” Free expression of unhappiness and criticism may be unpleasant, but it forces government to deal with the problems of the governed, thereby enhancing stability.

Social media brings new ideas and problems to the public agenda. Does it also polarize the public, thereby disrupting the consensus needed to deal with those problems? Probably not. A study by economists from Stanford Univeristy and Brown University found that “that the growth in polarization in recent years is largest for the demographic groups least likely to use the internet and social media.”

We are emerging from an era dominated by television, a uniquely centralizing medium where many viewers passively consume information beamed to them from a single source. While the return of a decentralized media environment may be initially disruptive, television had long suppressed, or simply failed to host, a great many perspectives now evidently valued by Americans. The stability of that era may distort our views of current changes. If anything, we should be concerned that this change comes too late, that the voices demanding change have been ignored for too long.


Social media seems imperfect but hardly broken from the perspective of free speech. Public opinion formation prior to the advent of social media and the internet was imperfect and arguably broken in its own ways. Perhaps social media will ultimately betray the values implicit in freedom of speech. But for now, social media appears on the whole to serve the values of free speech, and the improvements needed appear possible if not likely.

What Do You Do with a Problem Like Social Media?

The larger theme of this colloquy is whether “social media” are “broken.” Will Rinehart’s essay hones in on a particular version of that question, which is whether “fake news” is in some sense responsible for course and outcome of the 2016 election. In doing this, he cuts down the “broken-ness” question into something more bite-sized, and hooray for that, because doing so gives us fulcrum we can use for leverage into larger issues.

Will makes many observations that I think are essentially correct, but draws a number of inferences from those observations that I think may be incorrect or correct but too narrowly gauged. But let’s focus at the outset on some things I think he’s gotten right.

Will correctly notes that commentators and politicians across the American political spectrum have decried the use of social media platforms to spread disinformation, and that this has led some of these critics to “chide these platforms.” He’s appropriately skeptical about whether it makes sense to focus on the social media platforms when (he believes) the real focus ought to be on “institutions of governing.” (I agree that examining and perhaps reforming these institutions is a necessary condition for American progress, although maybe not a sufficient one.) Will then looks back into the history of how we talk about democracy in the United States. Although I share philosopher Karl Popper’s view of the poverty of historicism, I nonetheless think that Rinehart’s grounding of modern concerns in historical perspective is generally the right initial approach.

Will’s essay veers off into a less useful direction, I think, when he settles on somewhat binary distinction between (a) “modern conceptions” of democracy that stress an informed citizenry and (b) an earlier period of U.S. politics in which “individuals weren’t expected to make rational choices when voting.” That earlier period, he says, didn’t much require that voters know the issues—they just had to pick the candidate or party they preferred. But, per Will’s narrative, populist initiatives such as civil-service reform and the secret ballot, together with the rise of national newspapers, weakened party politics by reducing the incentives for party loyalty. With secret ballots, you don’t risk riling your neighbors when you vote for Party X in a Party Y district—perhaps because you have been persuaded by a Party-X-leaning national newspaper. But you also don’t vote for Party X because it might increase your odds of getting a job as a postmaster or an appointment as a justice of the peace. Thanks to the reforms beginning in the late 19th century, voters and party stalwarts got fewer sticks and also fewer carrots. (Or so it was believed—peer pressure and patronage are slippery beasts that evolve quickly.)

Will correctly notes that our “modern conceptions” of democracy in the United States have as one premise that “the informed citizen” as a “pillar” supporting what we think makes the American Republic work. And I think he’s also right to say that when an election (or an entire election cycle) departs from what’s expected—our expectations may be based on polling data and on media accounts—the temptation for our political observers is to seize upon an easy culprit to blame. Because social media are new, still growing, and still transforming our public life, it’s easier to target them as the problem, even though Will rightly observes that the available data don’t seem to support the trendy idea that Facebook or Twitter or Google are centrally responsible for electoral dysfunction. Americans, like most other world cultures, tend to view new developments in mass media first with fascination and then with alarm lending itself to a moral panic. We saw such a moral panic about porn on the capital-I Internet a couple of decades ago, about television a couple of decades before that, and about consumer-research-based advertising a couple of decades before that. (And don’t get me started on video games and comic books.)

So, when it comes to Will’s underlying thesis—that we should focus more on democratic institutions than on the purported problem of “fake news,” he’s got both logic and facts on his side. He’s right to underscore Jonathan Rauch’s comprehensive argument that populist political reforms have been destabilizing. But I wish Will would give more credit to the possibility that social media can actually be a substantive force for good.

In my own international work, I’ve seen democratic movements in many other countries using Facebook to publicize injustice and mobilize political action. David Kirkpatrick’s book The Facebook Effect kicks off with an account of how a single Facebook user in Colombia leveraged the social-media platform to mobilize public opposition to the FARC guerilla movement. These uses of social media (yes, Instagram and Twitter play their roles here as well) ought to be the centerpieces of any argument that social media aren’t, in fact, “broken.”

But Will’s not-so-ringing defense against the charge that social media are “broken” or that they facilitate the spread of “fake news” is this:

What people do online is engage in the pointless babble that is so often derided. They go online to express sociability and maintain bonds, not debate politics. Snapchat isn’t built on political rants, it is built on videos and pictures of family, pets, and the sweet banality of daily life. Much more social media is like this than we tend to imagine.

So we shouldn’t worry about social media because they’re more or less inconsequential “babble”?  Nice try, but as the Supreme Court has shown us, it’s a lot easier to justify censorship of any exercise of freedom of expression if you can show that it lacks “serious literary, artistic, political, or scientific value.” Even if only a few social-media users leverage their platforms for political expression, I’d take that to mean that the platforms definitely do have “serious” political value.

But I’d make the argument that even what Will dismisses as “pointless babble” does in fact have a point. Expressing sociability and maintaining bonds is, in my view, as central to making the American republic work as debating politics is. It’s also central to our understanding of the First Amendment, which we generally understand to protect any kind of expressive communication—including what Thomas Emerson characterized in 1963 as the First Amendment’s support of “individual self-fulfillment”—not just political debates. What’s more, it’s clear that the social media we may first explore for fun or “the sweet banality of everyday life” are tools that, thanks to our hands-on experience, we can later leverage in political processes. Even if, as Will states, 2016 wasn’t “the election of social media,” there’s no particular reason think 2020 won’t be. And it’s likely than that Jonathan Rauch’s suggested reforms—aimed at strengthening political-party organizations—won’t be in place before then. Rauch writes:

The biggest obstacle [to strengthening political parties] is the general public’s reflexive, unreasoning hostility to politicians and the process of politics. Neurotic hatred of the political class is the country’s last universally acceptable form of bigotry. Because that problem is mental, not mechanical, it really is hard to remedy.

If hatred of politics and politicians is a mental problem, then maybe we need to address it as a nation through talk therapy: the group therapy of social media. No one can seriously dispute that, whatever else these platforms are used for, individuals use them a lot nowadays to express concerns about our political process and to chart a path forward.

Will asserts that “[f]rom the very founding of the United States until the late 1890s, individuals weren’t expected to make rational choices when voting” and that, post-populist-reforms, we’re still in need of what Michael Schudsen called “a language of public life that reconciles democracy and expertise.” But that’s not my takeaway even from the most anti-majoritarian passages of The Federalist, which, in number 22, underscores that “[t]he fabric of American empire ought to rest on the solid basis of THE CONSENT OF THE PEOPLE.” (No one discouraged Publius from using all-caps.) Presumptively in our republic, the people have the expertise to pick leaders with governmental expertise.

Of course, sometimes the people make bad decisions in voting. Whether you exalt the wisdom of crowds or decry the madness of crowds, the fact is that crowds are at the heart of making our republic work.  Sure, sometimes our crowds do goofy things, but sometimes they do the right thing. Free-market theory recognizes that crowds may know more than even the best experts, but economic booms and busts show us how all too frequently there’s a lag time as our crowds advance up the learning curve. For me, the prospect of our crowd’s sharing personal and political knowledge and even wisdom directly with one another—rather than, say, merely through the imperfect signaling of prices—is a central promise of social media. Yes, our social-media platforms are certainly imperfect, but they’re also evolving, not least because they do have a stake in listening to our complaints. They’re not “broken” any more than a baby who can crawl but can’t yet walk is “broken.”  What they are, instead, is a work in progress. What we need to do when social media manifest social dysfunction is give them—and us—the space in which to grow up.

Democratic Culture Is More than Mere Voting

The question “is social media broken?” is a seemingly simple query, but like Russian nesting dolls or ad-buy scandals, much more lies beneath the surface. For one, what does it even mean for a concept as new and ever-changing as social media to be broken, anyway? For another, when was social media ever done correctly, such that it might now be ruined? And is this really about what social media was––or is it just what we hoped it could be––that makes us now feel like it might have somehow become bereft of social utility?

Will Rinehart takes on one specific angle to this broad question in his essay Fake News and Our Real Problems: Despite the conception that social media played an enormous role in enabling fake news, which in turn undermined the power information had to create an informed electorate—which in turn undermined democracy—online platforms are not our real problem. Rinehart argues that social media is not a “but for cause” to modern democracy’s collapsing house of cards, but instead “the culprit is well meaning reform efforts that have dismantled our intricate, informal system of political intermediation.”

The argument is compelling, and Rinehart bolsters it with much evidence of the importance of free and accurate information in creating democratic legitimacy and recent studies debunking the role of fake news in the 2016 election. But his is perhaps a formulation far too narrow in how it defines democracy, discussing it only in terms of elections, government, and political participation and never reaching the “intricate, informal” systems he seems to think are actually at work. The narrower view is of course a totally accurate and well-understood definition of democracy, but in the modern era, Rinehart’s focus feels a bit like walking into the Sistine Chapel and just looking at the floor. The internet has given us more than just new insight into an enlightened political regime of governance – it has created an entirely new culture of democracy, one in which freedom of speech has a more vital role than ever.

Freedom of speech in an internet age, then,1 is not about “a republican concern with protecting democratic process and democratic deliberation,” but instead, as Professor Jack Balkin has argued, it is about “a larger concern with protecting and promoting democratic culture.” One of the central tenets of Balkin’s theory of democratic culture is understanding that the internet, by empowering individual speech, creates a much more complicated vision of democratic power than that encapsulated in mere politics. This is because the internet and online platforms allow people to cheaply and easily amplify speech not just to their communities and countries, but around the world, without being dependent on “traditional media gatekeepers” and publishers. The internet also changed the kind of speech that gave people democratic power. Today, while huge swaths of political power are still tied to political families, wealth, race, and elite education, people today can mobilize democratic culture to “route around” these traditional power structures. These alternate channels include content creation, memeification, organizing, and advocacy.

If Rinehart’s conception of democracy seems somewhat stodgy to the modern reader, it seems downright progressive when compared to his understanding of online speech. As scholars like Balkin have noted, freedom of speech ––in a somewhat circular fashion––is both one of the things promoted by a democratic culture and one of the things protected by it. Rinehart seems to acknowledge and agree with this relationship when he discusses the role of social media in democracy, but then curiously goes on to miscast and trivialize it:

What people do online is engage in the pointless babble that is so often derided. They go online to express sociability and maintain bonds, not debate politics. Snapchat isn’t built on political rants, it is built on videos and pictures of family, pets, and the sweet banality of daily life. Much more social media is like this than we tend to imagine and also absent of the role of social media not just as a source of information, but as a source for amplification of speaker’s voices.

This conception not only misses the breadth and depth that online speech platforms provide, it undervalues the nature of modern democracy in the internet age. It also seems to underestimate the role of digital speech and culture in tapping into a more traditional type of informed and participatory democracy, as opposed to a “public life that reconciles democracy and expertise,” on which Rinehart seems focused.

A recent example illustrates this point. Traditional media informed the public of the Harvey Weinstein sexual assault scandal, and those same institutions played a vital part in fact-checking and vetting the information given to consumers. But the development of a simple hashtag, #metoo, by Tarana Burke took the Weinstein allegations and made them personal. Not just to every woman who has experienced sexual harassment or assault, but to all the men who were forced to scroll through the status messages and stories of women in their online communities, and in turn all of the people those men and women vote for. The #metoo movement––individual speakers amplifying their voices through social media independent of gate-keeping publishers––in turn became its own source of power and political change and, ultimately, its own story worthy of coverage in traditional media. It was the essence of what Balkin speaks of when he describes digital speech enabling democratic culture and thus becoming democratic power.

This model is more comprehensive and allows us to understand––and discount––the problem of fake news for democracy, a problem that Rinehart seems to agree is not really so great a problem at all. I cannot claim credit for these insights, or even give it to Balkin alone. A few months ago, media lawyer and scholar Nabiha Syed wrote in the Yale Law Journal Forum that, “[a] focus on culture, not politics, does more than remedy the central gap of the collectivist view while maintaining its system-wide focus. It also helps us expand our focus beyond legal theory to… understand amplification as a relevant concept… .not only through rational deliberation, but also by using familiarity and in-group dynamics as a proxy for truth.”

To focus a discussion about the internet’s role in democracy only on its ability to enable discussions of pure politics or information for actual voting is like arguing that one leg of a stool is the most important. Instead, the real concern for democracy should be not on fake news but instead on preserving free speech online in order to continue to enable a robust and vibrant democratic culture.

The Conversation

Democracy as an Essentially Contested Concept

The reactions to my initial essay by John Samples, Mike Godwin, and Kate Klonick, highlight the perennial tension in studying democracy. In one regard, this thing we call democracy demands vision; it invites imagination for the society we want. Yet these systems must be lived, so scholars and wonks also focus on the practices as they exist. To be less obtuse, talk about democracy typically intermingles a normative framework and a descriptive reality.

While I might not have been explicit, my hope in the lead essay was to illuminate a place where the tensions between these two elements have come into conflict, specifically with fake news. To summarize, I tend to think the worry that fake news is going to destroy democracy is important to the extent that it implicates a set of assumptions held about democracy and its relationship with rationality.

Thus, I have a small quibble with Klonick’s assertion of “the importance of free and accurate information in creating democratic legitimacy.” As a descriptive statement, this is clearly the case. Most everyone will claim that democracy is built upon free flowing and accurate information. But as a normative statement about how democracy should work, I’m withholding my judgment, since there is a lot more underneath.

Both Klonick and Godwin rightly point out that I didn’t get into those other events where social media has been a form of democracy. Indeed, I do agree with Klonick that I described democracy “in terms of elections, government, and political participation” and never reached “the ‘intricate, informal’ systems [that I seem] to think are actually at work.”

Those intricate, informal, networked systems of relations are incredibly difficult to describe in a short essay. Flexible boundaries between political engagement and nonpolitical civic engagement make the work even more difficult. Nearly a decade ago, I took to using the term cyberactivism to denote these constellations of actions because of its more open definition that includes efforts to induce social, political, and economic reforms. As I said then, “the era of cyberactivism, more than the eras of activism that preceded it, is focused on the negotiation between many kinds of actors.” To do a topic justice and to understand how new communications technologies change democratic practice requires a tracing of the linkages between the tools and how they interact with the mobilizing strategies and the collective identity of movements. That wasn’t my goal in the original essay, but I will be turning to it here.

Klonick offered the #MeToo movement as an example of these informal systems at work, saying,

The #metoo movement––individual speakers amplifying their voices through social media independent of gate-keeping publishers––in turn became its own source of power and political change and, ultimately, its own story worthy of coverage in traditional media.

While #MeToo has sparked a much needed and necessary conversation around sexual harassment and sexual assault, unseating powerful men in its wake, it has its modern genesis in a tweet by Alyssa Milano, and came on the heels of the troubling news about Harvey Weinstein. In this way, we can understand the current iteration of the movement as having a vocal and well known champion.Yet the me too movement has been around since 2007 as Klonick’s citation to a New York Times article points out. That article profiles Tarana Burke with a title suggesting something deeper at work: “The Woman Who Created #MeToo Long Before Hashtags.” One could read the #MeToo movement as simply fitting within a newer understanding of social movements as outlined by Laura Illia. As Illia explained, online movements are new phenomena; they still find their roots in activism, but it is an activism that is undergoing new dynamics of issue selection and differing aggregations within groups due to the internet.

I didn’t put forward a positive defense and framework of networked democracy because it would need to be situated within a broader ethical framework and an understanding of movements as Illia suggests. In the next week, I will attempt to put together a first draft of this framework and situate an idea of networked democracy within it, which will also aim to incorporate Klonick’s example.

Oftentimes, when we use the term democracy or its adjective form, we are using it a rhetorical shield and sword. Reading all of the essays as a group, W. B. Gallie’s notion of an essentially contested concept comes to mind. As he noted in 1956, there are certain concepts like art, religion, science, democracy, and social justice that are abstract in nature but are nonetheless evaluative. Essentially contested concepts “inevitably involve endless disputes about their proper uses on the part of their users.” In other words, we use the word democracy and either exclude or include elements of it when we want to make a value claim.

Klonick approvingly cites Jack Balkin, but Balkin is engaged in the kind of language game with democracy that Gallie lays out. Balkin says it plainly in his article,

A democratic culture is more than representative institutions of democracy, and it is more than deliberation about public issues. Rather, a democratic culture is a culture in which individuals have a fair opportunity to participate in the forms of meaning making that constitute them as individuals.

In his case, he expands democracy from the typically understood boundaries of representation and deliberation, which is where I focused, to include various elements of the liberal project, which rests on a conception of members of the public as free and equal. As Gerald Gaus noted, to say a person is free implies that each has a fundamental claim to act as she sees fit on the basis of her own reasoning, and to say that people are equal is to insist that members of the public are symmetrically placed without a natural right to command others, and without a natural duty to defer to the reasoning of others. While Balkin provides an attractive extension onto the conception of democracy, he doesn’t mention the broader liberal tradition on which he relies, and for this reason, I am left wanting more.

The profusion of online spaces has clearly allowed for more informal conversations to occur, and those conversations are having an effect on political processes. The magnitude and direction of those conversations are still context specific. In the next round of responses, I will attempt to but some more meat on the bones of this discussion, aiming to create a more formal framework to understand social media within democratic practices.

Beyond Free Speech Narrowly Considered

Like John Samples, I find Thomas I. Emerson’s exploration of the social value of the First Amendment persuasive, and it has been profoundly influential on my thinking as a civil libertarian. (Note to Amazon—you want to fix the link to Emerson’s The System of Freedom of Expression, which isn’t findable when you search under the author’s full name.) Freedom of speech, as Emerson explains, is valuable for more than just its necessity to the proper function of democracy, and John particularly underscores this point when he says that, in terms of free speech’s role in individual self-fulfillment, “social media is an unalloyed good.”

Dovetailing nicely with John’s channeling of Emerson is Kate’s discussion, which points us to Yale law professor Jack Balkin’s great 2004 article about “digital speech and democratic culture.” Kate argues that our democratic culture is bigger than just voting—or politics generally, and I’m compelled to agree. Fans of Balkin’s 2004 article—and I count myself among them—will likely also enjoy Balkin’s more recent articles that address the intersection of the public interest, government power, and the companies that operate the internet’s digital platforms. (You can start with Balkin’s recent law-review article – summarized helpfully in Balkin’s blog post earlier this year – and trace it through its footnotes to Balkin’s developing an increasingly systematic appraisal of internet culture and its relationship to our law and values. Taken together, Balkin’s articles are must reading for anyone grappling with the impact and implications of today’s social media and other internet platforms.)

And I especially like Kate’s conclusion:

To focus a discussion about the internet’s role in democracy only on its ability to enable discussions of pure politics or information for actual voting is like arguing that one leg of a stool is the most important. Instead, the real concern for democracy should be not on fake news but instead on preserving free speech online in order to continue to enable a robust and vibrant democratic culture.

All too often, we allow ourselves to yield to the easy temptation to understand freedom of expression in terms of its political, democratic value. I perhaps differ from Will in that I may think freedom of expression, including what he dismisses as “babble,” is more central to governance of our democratic republic than he does.

Furthermore, I’d argue that my more expansive view of the importance of freedom of expression, especially on comparatively new platforms like social media, reflects a more expansive consensus about the value of freedom of speech in the modern era. That is, I think, the thrust of what Balkin discusses in his 2004 article when he criticizes the Alexander Meiklejohn tradition of free-speech-to-promote-democratic-deliberation as “only a partial conception, inadequate to deal with the features of speech that the new digital technologies bring to the foreground of our concern.”

This expansive consensus about freedom-of-expression functions that we in the United States associate primarily with our First Amendment are also recognized and supported—not for their mere political value but simply as individual liberties—by other national and international rights instruments around the world, including the International Covenant on Civil and Political Rights. Most modern governments either commit themselves to freedom of expression as individual liberty—including how this liberty is exercised on social media—or else they at least try to give the appearance of doing so. Even the lip service to free speech that most nondemocratic governments offer nowadays is a sign of progress—only a few centuries ago governments’ talk of the need to protect individual liberty was the exception rather than the rule.

In my own work as an advocate of online freedom of expression, recognizing that we always need to consider online freedom of expression in terms of its wider individual-liberty importance rather than in terms of its importance to democratic governance, came to me as an epiphany back in 1995. That’s when I listened to a fellow speaker at a University of Texas event (the Austin institution is my alma mater) decry how people were exercising their freedom of speech on the newly arrived internet. As I recounted in Wired that year, my fellow speaker was ready to dismiss the importance of internet speech that isn’t directly concerned with political change:

If the Internet is such a tool of democracy, [Gary] Chapman wondered, why isn’t it being used to organize activist projects? Instead, Chapman complained,net.folks too often choose to exercise their vaunted freedom of speech by focusing on “trivia and sleaze.” This is troubling, he said, because the purpose of freedom of speech is to inspire and promote social and political progress - to “stimulate collective action.” For Chapman, “effective, potent free speech” - the kind that leads to progressive political results in the physical world - is morally superior to the anarchic, selfish free speech of the Net, which is “palpably disengaged” (how does one “palpate” disengagement?) from the crises facing our nation.

So when Will described most use of social-media platforms as “pointless babble”—although allowing that sometime this “banality” is “sweet”—I heard echoes of the same dismissiveness of internet freedom of expression that I believed more than two decades ago might pave the way for a new imposition of censorship. I still worry about that today, especially in light of the current wave of arguments that social media or the companies that currently host these platforms are out of control and socially destructive. My response now, as it was then, is that the social channels of expression we adopt for fun will ultimately turn out to be instruments not only of fundamental individual liberty but also of democratically driven social progress.

To be sure, I understand and sometimes empathize with the impulse to constrain social media—it’s new, rapid-response, and sometimes sometimes scarily powerful. (That’s why I think Kate’s focus on the #metoo movement in this year’s social media is spot-on.) I even sympathize a little bit with the impulse to take a “hard break” from social media, as one former Facebook executive urged recently. But my own experience suggests that, rather than take a “hard break,” it serves us all better to take a few breaths. The current moral panic about social media isn’t the first one our culture has had to process—consider, for example, the worries about cheap paper—and it won’t be the last. We owe it to our posterity to treasure and defend the new liberty we’ve got, not just because it helps us govern ourselves, but because it helps us become ourselves.

First Amendment Values versus the First Amendment

I would like to conclude my participation in this month’s Cato Unbound with some reflections generally on democratic culture and the internet and specifically on Jack Balkin’s 2004 article “Digital Speech and Democratic Culture.”

It is hard to fault Balkin’s vision of democratic culture. But time has a way of complicating or even undermining attractive ideas, and so it is with Balkin. Tim Wu has recently set out some of the problems noted with internet speech. Democratic culture may still be better than its competitors on the whole (as argued earlier at least with regard to freedom of speech), but there are reasons for concern.

Balkin offers in some ways a typical Progressive narrative about free speech on the Internet, a widely shared story judging by recent protests against the end of net neutrality. Business (i.e. corporations) are always a threat to some important value, while government both threatens and encourages them. In this case, Balkin thought the search for profits would constrain the speech of individuals (p. 22). Instead, the monetization of content through an advertising model rendered user-generated cultural products a tremendous revenue generator for platforms which host and organize it. Rather than allying with commercial content creators to strictly enforce their “paracopyright” claims, platforms have pursued profits toward a much more democratic, participatory internet. Balkin’s fear of perfectly vertically integrated media conglomerates was rendered hollow because little demand emerged for what they were selling. Top down design of cultural products beat crowdsourced creation only until it was discovered that advertising could pay for its distribution. I am not seeking to score points here. After all, predictions are hard, especially about the future. But importing the binary oppositions of high Progressivism (or other binaries) tends to lead us astray. Perhaps business might be both a demon and an angel (or something in between) in fostering democratic culture?

I get nervous when I read the phrase “first amendment values.” An earlier, pre-internet use of term (or the related phrase “the purposes of the First Amendment”) led some to argue that the First Amendment required restricting the autonomy of some speakers in order to have a better public debate, that is, to better attain the values of the First Amendment.

That argument came from Alexander Meiklejohn’s view that free speech should serve democracy. Balkin thinks Meiklejohn no longer applies, and indeed, Balkin wishes to maintain constraints on censorship. I do wonder though what means might be justified by “free speech values” and democratic culture. The values of democratic culture would seem to be positive rights that obligate others. What tradeoffs are implied by those positive rights?

Consider intellectual property. To participate in making a democratic culture, people need to (and do) use cultural artifacts owned by others. Balkin calls for strong “fair use” to encourage democratic culture. Some would deny recognition and protection to intellectual property; after all, Mickey Mouse has retained his popularity because he has been absorbed into and retained by popular culture, long after Walt Disney penned his last cheerful rodent. On the other hand, in initially creating Mickey, Disney birthed an incredibly potent cultural product, and since at least 1688, the added value of that type has justified a kind of private property, for some people anyway.

In a culture characterized by endless remixing, the locus of value creation can be difficult to determine. Contemporary examples, in which the creation-remixing loop is much tighter, ably demonstrate this difficulty. Consider the copyright battle between Katy Perry and an anonymous 3D modeler who created and freely distributed designs for a statue of one of Perry’s costumed backup dancers whose lackadaisical performance was celebrated by internet users. Was Left Shark made valuable because of the work of Perry’s design staff, the dancer’s lack of preparation, the internet comments and memes celebrating his lack of preparation, the platforms that hosted and transmitted the memes, or the creation of a .STL file of the shark in the face of its transient popularity? How much value did each of these actors create? Does the temporary, fad-like nature of Left Shark’s popularity influence our assignation of value? Left Shark faded before being politicized, but what of commercial art that is later politicized, like Pepe the frog? I shall not pretend that libertarians are of one mind on intellectual property. But the status of intellectual products matters to libertarians; if intellectual property exists, Balkin’s democratic culture creates a positive right. If not, no rights are at issue.

Balkin shows that questions about the Internet, free speech, and democratic culture are hardly new. But 2017 does seem to have been a turning point. These questions now seem less abstract and more pressing. The year to come and the years thereafter may well make the struggle over answers to these questions central to American democracy.

Technologies of Freedom

As I discussed earlier, democracy is an essentially contested concept. Like art, religion, science, and social justice, talk about democracy “inevitably involve[s] endless disputes about [the concept’s] proper uses on the part of their users.” For the internet, talk about democracy has often taken on a revolutionary zeal, and even today, technologies are judged by those emancipatory visions formed at the early stages of internet technology.

From its earliest precursors, the internet has had its evangelists. And Silicon Valley offered a unique crucible. Deliberate and unintentional interactions among military researchers, academics, and corporate scientists helped to form the technical features of the medium. Meanwhile the region was the center of the countercultural movement in the 1960s, the failings of which helped to undergird a new rhetoric of technological salvation. Prime among those ideals was a profound faith in the technology’s emancipatory potential to boost democratic participation, trigger a renaissance of moribund communities, and strengthen associational life.

Internet pioneer Howard Rheingold once observed that “the granola-eating utopians, the solar-power enthusiasts, serious ecologists and the space-station crowd, immortalists, Biospherians, environmentalists, [and] social activists” populated the community from the beginning. From these diverse groups came the hacker ethics, an impulse that “expresses itself via a constellation of minor acts of insurrection, often undertaken by individuals, creatively disguised to deprive authorities of the opportunity to retaliate.” The emancipatory politics of the hacker ethos is based on two elements. On one hand, it seeks to lift the “shackles of the past,” and on the other, it wants to overcome the repression and domination of powerful individuals and groups, thereby creating a legitimate base of power. Both of these pillars are rooted in the principle of autonomy. As sociologist Anthony Giddens notes, “Emancipation means that collective life is organized in such a way that the individual is capable – in some sense or another – of free and independent action in the environments of her social life.”

The melding of these influences can be best seen in the now notorious words penned by former Grateful Dead lyricist and founding member of the Electronic Frontier Foundation John Perry Barlow. In the “Declaration of Independence for Cyberspace,” he states emphatically, “Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather.”

Another good example of this emancipatory bent comes from Free Press, a media reform organization. In arguing the importance of internet policy, the organization once noted, “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.” Though just a sentence in length, the reader is encouraged to recall numerous stories to fill in the gaps and make this statement meaningful. At one level, it taps into the historical struggle between democracy and dominance, especially as it relates to broadcast technologies. Radio was once seen as a “new miracle,” while television was understood to be the “great radiance in the sky.” Both of these media were expected to catalyze political engagement and enrich American democracy, and yet failed to do so. And in another regard, that sentence from Free Press also entices us to imagine a technological utopia.

In a twist on this theme, tech commentator Evgeny Morozov admonished tech critics because they lacked a strong emancipatory political vision. Without it, he claims, there are really just two options for tech critics, “they can either stick with the empirical project of documenting various sides of American decay (e.g., revealing the power of telecom lobbyists or the data addiction of the NSA) or they can show how the rosy rhetoric of Silicon Valley does not match up with reality (thus continuing to debunk the New Economy bubble).” Indeed, there is truth to this. Pierre Lévy, Jurgen Habermas, Ithiel de Sola Pool, and Sherry Turkle have each articulated a version of that emancipated world.

As I have explained elsewhere, the dream of an internet based emancipatory politics fails because it looks for a grand restart, missing the hard work being done in communities everyday. It is a vision that is blind to community leaders laboring for the betterment of their neighbors by setting up a simple Facebook page, to citizens that engage in daily acts of political expression online, and to lawyers with an ethical sense, working on thankless cases in obscure districts that they learned about via news sites or submission forms on their own websites.

Still, there is something more fundamental at play. In describing the cycle of optimism and pessimism over new technologies, Adam Thierer hints at the tension,

A new technology appears. Those who fear the sweeping changes brought about by this technology see a sky that is about to fall. These “techno-pessimists” predict the death of the old order (which, ironically, is often a previous generation’s hotly-debated technology that others wanted slowed or stopped). Embracing this new technology, they fear, will result in the overthrow of traditions, beliefs, values, institutions, business models, and much else they hold sacred.

The pollyannas, by contrast, look out at the unfolding landscape and see mostly rainbows in the air. Theirs is a rose-colored world in which the technological revolution du jour is seen as improving the general lot of mankind and bringing about a better order. If something has to give, then the old ways be damned! For such “techno-optimists,” progress means some norms and institutions must adapt—perhaps even disappear—for society to continue its march forward.

Thierer forcefully argues for a sensible middle ground position, which he dubs “pragmatic optimism.” And Thierer is right to be optimistic about the possibilities of new technologies. Nevertheless, internet based technologies are still judged by those emancipatory visions formed at the early stages of technology. This is because the debate over the emancipatory nature of the internet reflects a more a fundamental dissatisfaction with the established order, as I explained in my lead essay. As Henry Jenkins and David Thorburn noted, “Even if we believe that the concept of a digital revolution is empty rhetoric, we still must explain why a revolution, even a virtual one, has such appeal.”

There is another route to understanding these changes, and it is through the capabilities approach.

The Capabilities Approach

The capabilities approach is an evaluative framework that finds its beginnings in work from Amartya Sen and Martha Nussbaum. It is used in a wide range of fields to evaluate various aspects of individual wellbeing, and it can also be a tool to design and evaluate policies. According to this approach, “the ends of well-being, justice and development should be conceptualized in terms of people’s capabilities to function.” In other words, a capabilities approach focuses attention on the opportunities an individual can undertake, or their capability to act.

Sen dubs the total constellation of actions as they are performed functionings, which would include working, resting, being literate, being healthy, being part of a community, being respected, and so on. Here is the rub. There is a distinction between achieved functionings and capabilities. While capabilities include every possible opportunity, actual achievements are only a subset of this broader group, and they are contingent on the choices an individual makes.

As Ingrid Robeyns explained it,

What is ultimately important is that people have the freedoms or valuable opportunities (capabilities) to lead the kind of lives they want to lead, to do what they want to do and be the person they want to be. Once they effectively have these substantive opportunities, they can choose those options that they value most. For example, every person should have the opportunity to be part of a community and to practice a religion; but if someone prefers to be a hermit or an atheist, they should also have this option.

This approach is useful for the current discussion because it highlights two separate domains of inquiry. In one kind of conversation, we can explore the opportunities afforded by internet based technologies. John Samples does exactly this in his response essay: “Not since the invention of the printing press have we seen such a radical expansion of the individual’s capacity for self-fulfillment through self-expression.” The internet has radically altered the opportunities to act in concert with others; it has lowered the threshold to communication. At the same time, it highlights another domain of inquiry, the realized actions of individuals or functionings.

Intellectually, I owe a considerable debt to Paul Crider, who has done yeoman’s work on this topic. The bulk of his writing on this subject can be found in a series starting here, where makes clear the strain that exists between functionings and capabilities:

Functionings are not required in the capabilities approach in most cases. So voting, or being able to participate in the decision-making processes of a community, is a capability, but the actual functioning of this capability is not required: anarchists, the Amish, neoreactionaries, and other skeptics of democracy are free to refrain.

As I noted in the initial essay, most “people go online and engage in the pointless babble that is so often derided.” To be clear, I don’t think it is pointless since these gestures are simply an example of what linguists call phatic communication. To restate it within this discussion of capabilities, what is achieved with internet technologies is far less civically minded than scholars and writers suggest. The functionings of online life aren’t rooted in political action, but in videos and pictures of family, pets, and the sweet banality of daily life. The freedom of political action online is an important part of digital life, but it shouldn’t be the only standard by which we judge these technologies.

Let’s return once more to Jack Balkin’s democratic culture:

A democratic culture is democratic in the sense that everyone – not just political, economic, or cultural elites – has a fair chance to participate in the production of culture, and in the development of the ideas and meanings that constitute them and the communities and subcommunities to which they belong. People have a say in the development of these ideas and meanings because they are able to participate in their creation, growth, and spread.

Using the capabilities approach, we needn’t appeal to the authority of democracy to say that individuals should have a say in the development of culture. That can be done just as easily by marking it as a capability. But if we agree to this as an end goal, other issues arise. For one, what means will ensure that people have a fair chance to participate in the production of culture? Is the market sufficient?

In short, what the capabilities approach offers isn’t a series of answers, but a more formalized series of questions. It also drives us to disentangle the goods and services, which are merely means, from capabilities and functionings, which are ends in themselves. Fake news helps to tease out these connections. Surely we can all agree that individuals have a broader set of opportunities to become informed about their preferred political candidate. Said another way, the capabilities have expanded. Yet, what is achieved, the functionings, could be quite different than what people hope would be the case.

Free Speech and Our Social Media Moral Panic

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 communicationincluding 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.