Balkinization |
Balkinization
Balkinization Symposiums: A Continuing List E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahman sabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts What can and should platforms be responsible for?
|
Sunday, December 20, 2020
What can and should platforms be responsible for?
Guest Blogger
From the Workshop on “News and Information Disorder in the 2020 US Presidential Election.” Daniel Kreiss and Bridget Barrett In the interdisciplinary field of misinformation and disinformation studies, there has been no consistent answer to the question of ‘what can and should platforms be responsible for in the context of democratic decay’ (i.e., a context in which democratic institutions, structures, norms, and governance are eroding)? In this post, we take up this question in light of several relevant literatures on democracies in transition towards more authoritarian or ‘hybrid’ regimes, or more broadly, literatures examining the deterioration of core democratic processes, institutions, and governance mechanisms. Our review of this literature reveals that we lack good theoretical and empirical understandings of media systems in relation to democratic decay, especially the roles played by platforms. To address this, we conceptually outline several indirect effects of platforms on democratic decay, focusing on their roles in shaping public opinion and political institutions. Our goal is to bring two academic literatures together: 1) work on democratic decay that often fails to consider media and platforms, and 2) work on platforms that often focuses narrowly on public opinion and attitudes, overlooking institutional democratic processes. Media, technology, and democratic decay In a systematic review of the literature on decay within established democracies, Tom Daly refers to the “bazaar of theories” about transitions from democracy. These theories are grouped under a cluster of closely related terms such as “democratic backsliding” and “constitutional rot,” the parsing of which is well beyond the scope of this essay. In the many veins of this literature, scholars tend to focus on the role of political institutions (such as parties) and laws in driving the process of democratic erosion. For example, a central finding in this literature is that we have moved from outright coups to slower processes of constitutional erosion brought about by the efforts of antidemocratic leaders and political parties. When media are considered in this body of literature, they are often conceptualized as an independent check on the ruling party, or the target of it, not as a potential source of backsliding or decay in their own right. Meanwhile, existing literature on platforms and democracy from the social sciences lacks a clear answer to the question of whether platforms facilitate transitions from democracy or the erosion of democratic governance, or potentially work to stem them. Outside of the potential antidemocratic effects of misinformation and disinformation circulated on social media, which we take up in greater detail below, the focus of much of the existing literature, nicely summarized in a recent article by Helen Margetts, is typically on value- and ends-neutral democratic participation and polarization, echo chambers, and filter bubbles, primarily as they concern the mass public. By ‘value- and ends-neutral’ we mean that much of the research literature is normatively concerned with participation and polarization, often without substantially addressing if political actors espouse antidemocratic ends. This is an important and needed distinction for thinking about democratic decay. If one party or group of partisans in the electorate is directly questioning the legitimacy of democracy, undermining democratic institutions and norms, actively working towards antidemocratic ends, or asymmetrically engaging in disinformation tactics to destabilize democracy, mobilization against that party may be necessary to preserve a functioning democracy. As such, the erosion of democratic norms such as tolerance or growing polarization might be less of a concern. In sum, the literature on democratic decay generally overlooks media and platforms, while the literature on platforms has often not explicitly considered antidemocratic political action, institutional erosion, or forms of asymmetric radicalization. Therefore, we are conceptually interested here in the potential ways that platforms further forms of democratic decay. Broadly, we see indirect, not direct, effects of platforms on the deterioration of democratic processes, norms, and governance. As the expansive literature on democratic decay argues, de-democratization stems not from media problems but from political problems, such as direct actions by state actors and ruling parties, other institutional parties, and other organizations to undermine free and fair elections, independent judiciaries, pluralistic media, and democratic norms. That said, we argue that platforms play an important role in facilitating, amplifying, and incentivizing forms of expression — including harassment — that potentially weaken the cultures, norms, and institutions of democracy. While platforms themselves do not seek to do these things (if anything, in the U.S. they have assumed the role of democratic gatekeepers since 2016), they can empower actors and enable forms of expression that have these consequences. Potential indirect effects of platforms on public opinion and political institutions What can platforms potentially be held responsible for in democratic decay?
Tolerance among rivals with competing interests and different religions, social identities, and values is necessary in pluralistic democratic systems, especially in the context of securing a commitment to procedural fairness — although how far liberal pluralism must extend is often the subject of legitimate debate. Similarly, a cornerstone of the ethics of partisanship and democracy is a commitment to playing the electoral game in perpetuity with a legitimate set of opponents — partisans can accept defeat only with the knowledge that they will have a future chance to win political power. Social media and technology platforms potentially play a role in eroding norms of mutual tolerance and seeing the opposition as legitimate. This includes their potential role in furthering affective polarization, by which scholars mean an “us vs. them” animosity that animates politics and bleeds into social life. In the U.S., affective polarization is fueled by the social sorting of the two parties, highly contested campaigns, and shifts in the media and communications environment. If, and how, social media and digital platforms specifically polarize the public is the subject of intense academic debate, especially given that political elites play an outsized role in these processes (e.g., through the moralization of political discourse). While the evidence is mixed, platforms may be responsible for amplifying content through algorithms that antagonistically divide members of political parties, which becomes a significant democratic concern if it also erodes their mutual tolerance and faith that the other side will continue to engage in free and fair elections. This is contextual, of course — genuinely antidemocratic threats must be recognized as such. At the same time, research has consistently found that technology platforms further prodemocratic movements for political equality — struggles that often lead to greater polarization. Any consideration of the harmful democratic effects of polarization has to address the fact that political inequality, especially in the context of white racial supremacy in the U.S., has historically had much greater and more lasting destabilizing and antidemocratic effects, especially for nonwhite groups in society. Platforms may also play an indirect role in undermining public faith in democratic rule. Broadly, scholars point to the fact that public faith in democracy must persist in order for the system of government to be legitimate to the public, for people to consent to the power of elected representatives and democratic institutions, and for citizens to have faith in competitive elections. Platforms potentially play an indirect role in eroding democratic processes, procedures, norms, and institutions to the extent that they empower actors who espouse antidemocratic claims that weaken public faith in democracy, including elites who hold elected office and leaders in civil society. Indeed, while garnering less attention than affective polarization, social media might provide opportunities for the rise of anti-system parties and factions. Through providing organizational tools, digital platforms potentially empower and enable formerly institutionally-weak groups that fail to respect the rights or see the legitimacy of political opponents. Scholars have argued that many such parties gain organizational capacity from social media platforms in lieu of institutional resources. These groups might then in turn shape public opinion in antidemocratic ways. For example, there has been substantial research attention given to the rise of populist and nativist political parties that challenge well-institutionalized ones, particularly in European contexts. In addition, social media afford direct appeals to voters and the mobilization of resources, which undermine the ability of political parties to control their leadership processes. For example, in the U.S., candidate Trump in 2016 was able to utilize social and legacy media to take his appeals directly to voters, build a campaign organization outside of institutional party resources, and set the public agenda. The result in cases like this has been the empowering of antidemocratic parties and elites vis-a-vis institutional parties and elites. Platforms may also play a role in facilitating the coordination between private media actors and ruling parties in pursuit of undemocratic ends. Yochai Benkler, Robert Faris, and Hal Roberts’ analysis of strategic propaganda campaigns by the American right revealed the degree to which partisan and right-wing media outlets — such as Fox News and the digital-only Breitbart — act in concert with and leverage platforms to increase the dissemination of strategic disinformation. This disinformation is of an ideological and identity bent, as well as content designed to target and harass journalists — all of which result in democratic decay. While much of the academic literature on democratic decay tends to assume that media act as independent checks on political elites, the explosive growth of ideological, identity, partisan, and movement media on platforms might facilitate undemocratic ends. In the U.S., Fox News and Breitbart are best conceived as implements of state- and ruling-party power, not checks on democratic decay. In this way, platforms help facilitate relationships and coordinated action between private media actors and ruling elites and parties. Finally, platforms may play a role in the erosion of institutional legitimacy. Natalia Roudakova, building on Hannah Arendt’s work, uses the term “defactualization” to refer to “the world where the disregard of factual truths leads to the suspension of reality.” This affects not just the public sphere, but also the institutions tasked with producing public facts, such as journalism, federal agencies, scientific organizations, and research universities. Broadly, attacks by elites and other strategic actors on the institutional press and bureaucratic and academic knowledge are something that spreads significantly on platforms. This is also the case with misinformation, disinformation, and propaganda designed to undermine the legitimacy of institutions that reliably produce public facts. This potentially undermines a shared reality among the public. In turn, this undermines the possibility for democratic accountability, especially through public opinion and the press. To conclude this short essay, based on the literature on democratic decay we see a number of potential things that platforms legitimately can be said to be responsible for. Whether they can do anything about them is another matter. In the end, we do not believe that platforms can do much about things such as social sorting within parties, affective and ideological polarization, the decline of political parties’ ability to control their nominating processes, or the erosion of the administrative state and the rule of law. What they can do most clearly is work to protect free and fair elections, public discourse, and political institutions through strong policies and consistent enforcement, especially when disinformation and hate speech are concerned. Daniel Kreiss is an associate professor of journalism and communication at the University of North Carolina at Chapel Hill and principal researcher at the Center for Information, Technology, and Public Life. Bridget Barrett is a Roy H. Park doctoral fellow at the University of North Carolina at Chapel Hill and graduate student affiliate at the Center for Information, Technology, and Public Life. Cross posted at the Knight Foundation Posted 10:30 AM by Guest Blogger [link]
|
Books by Balkinization Bloggers ![]() Linda C. McClain and Aziza Ahmed, The Routledge Companion to Gender and COVID-19 (Routledge, 2024) ![]() David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024) ![]() Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation (Yale University Press, 2024) ![]() Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023) ![]() Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023) ![]() Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022) ![]() Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022) ![]() Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022) Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021). ![]() Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021). ![]() Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) ![]() Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020) ![]() Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) ![]() Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). ![]() Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020) ![]() Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020) ![]() Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020) ![]() Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019) ![]() Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018) ![]() Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018) ![]() Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018) ![]() Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017) ![]() Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017) ![]() Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016) ![]() Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015) ![]() Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015) ![]() Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015) ![]() Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution ![]() Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014) ![]() Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) ![]() John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) ![]() Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) ![]() Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) ![]() James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues ![]() Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) ![]() Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) ![]() Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) ![]() Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) ![]() Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) ![]() Jack M. Balkin, Living Originalism (Harvard University Press, 2011) ![]() Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011) ![]() Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011) ![]() Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011) ![]() Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011) ![]() Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010) ![]() Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic ![]() Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010) ![]() Mark Tushnet, Why the Constitution Matters (Yale University Press 2010) Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010) ![]() Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009) ![]() Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009) ![]() Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009) ![]() Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009) Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009) ![]() Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008) ![]() David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007) ![]() Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007) ![]() Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007) ![]() Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006) ![]() Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |