Wednesday, October 16, 2019

Making a Virtue Out of Neglect: How Laissez-Faire Constitutionalism Exacerbates Big Tech’s Absentee Ownership Problem

Guest Blogger

For the Symposium on Mary Anne Franks, The Cult of the Constitution (Stanford University Press, 2019).

Frank Pasquale and Danielle Keats Citron

In an arresting and powerful passage in The Cult of the Constitution, Mary Anne Franks argues that “the self-serving and irrational appropriation of constitutional principles to justify lies, harassment, discrimination, and outright violence endangers society as a whole and threatens to destroy democracy.” Indeed, a public sphere where words lose their meaning, disinformation spreads like wildfire, cyber mobs silence the vulnerable with online assaults, and hatemongers incite violence against unpopular persons or groups, is on a fast track towards both democratic decline and eroding social consensus on basic beliefs and obligations. Disinformation trafficked by state actors and adopted by guileless targets has not only frayed social cohesion, but has also caused the spread of dread diseases. Individuals beset upon by cyber mobs retreat from online social networks, undermining the aspiration of diverse voices engaged in public debate. The El Paso shooter turned hateful beliefs of fellow 8chan posters into deadly reality, killing parents, grandparents, and kids doing back to school shopping at Walmart.

After every major scandal involving public-health-endangering snake oil and other forms of disinformation, cyber mob attacks, and incitements to violence, big tech firms apologize. They promise to do better. Sometimes, they make a show of hiring more content moderators. Sometimes, they ban the worst sources of misinformation and harassment, as in the case of the banning of Alex Jones from YouTube and Facebook after years of his harassing victims of school shootings. However, every step toward safety and responsibility on platforms is in danger of reversal thanks to a brew of concern fatigue, negligence, and at bottom potential profit from eyeballs and ears drawn to arresting, graphic content.

We have seen this wash, retreat, and repeat cycle with Google and anti-Semitism. While the search giant labeled and offered counter speech to some troubling Nazi and white supremacist content in 2004, it backslid later, until it was called out by Guardian journalist Carole Cadwalladr and prominent academic Safiya Noble in 2016. By 2018, details emerged about YouTube’s algorithmic rabbit hole that was AI-optimized to lure unsuspecting viewers into alt-right content, and worse. Will Sommer and Kathleen Belew have chronicled the spread of radicalizing content on social media via closed groups and quasi-public posts. As long as tech companies optimize our automated public spheres for profit, we expect the same pattern: flurries of concern spurred by media shaming, followed by a long backsliding back into irresponsibility.

Franks’s important book helps us understand how a combination of idealism and cynicism drives this troubling pattern. Techno-idealists at firms endeavor to “keep up” content, because it fits with the myth that the First Amendment requires companies to do so, even if their employers are profit-driven companies and not state actors, and even if the content is manifestly false and harmful. Cynics realize that such cyber-libertarianism not only lacquers a veneer of principle onto controversial decisions. They also know that this non-response is far cheaper than employing fact checkers, journalistic ombudspeople, and content moderators. To be sure, not all tech companies respond this way, especially in the face of really bad press. But in the end the combination of techno-idealism and -cynicism tends to lead to a far more hands-off approach in the end.
This is big tech’s absentee ownership problem. Massive platforms are gradually taking over parts of the public sphere once constituted by more traditional media, especially media like NPR, PBS, and the BBC that are repositories of the public trust. Also displaced are community groups and other civil society actors. The platforms are not willing to engage in the kind of structuring and vetting that was once part of a denser and richer communicative landscape. They advert to the promise of algorithmic solutions, just around the corner, that will vanquish terrorist content, hate speech, and other troubling online activity. But experts in media studies and content moderation realize that is merely an unrealistic technical solution to what is ultimately a deeply political and social problem.

So platforms rely on something like “law’s halo” to grant some legitimacy to their own policies of inaction. In other words—when people tend to think a course of action is either commanded or commended by the law, they are more likely to view it as meritorious. Ironically, the First Amendment actually gives platforms significant latitude in deciding what they will and will not include or prioritize in feeds. Like the South Boston Allied War Veterans Council who wanted to keep gay marchers out of the St. Patrick’s Day Parade, platforms can and do assert their own First Amendment right to stop the state from interfering with the feeds they generate. For some, that makes their repeated failures to adequately deal with harassment, lies, and public health endangering hoaxes seem all the more troubling. To boot, as Franks documents and exposes, platforms are even further protected in the choices they make thanks to a federal law that broadly immunizes them for under- and over-filtering user-generated content. They have not been treated as common carriers in this sphere. They have not been treated as broadcasters with must-carry obligations. They have latitude to act, just as newspaper editors do, and unlike real-space newspapers they enjoy broad immunity from liability in their decisions. From the perspective of a moral or even religious devotion to laissez-faire and neglect, they are doing exactly the right thing.
That is where Franks’s repeated references to fideistic types of belief systems now justifying the contemporary automated public spheres are especially illuminating. Some religions insist on a certain fit between faith and reason, demanding that religious authorities offer some connection between the rules they impose and a plausible conception of human flourishing. Fideistic authorities, by contrast, demand adherence to principles on the basis of faith alone. For them, the faith does not need to adjust to the world in any way; the world must adjust to the faith. Like the praxeological, axiom-driven approaches to economics popularized by Mises and Rand, fideistic constitutionalists believe in broad and sweeping principles to be applied without exception or accommodation. Fiat oratio, ruat caelum.
We can do better. We can amend the federal law immunizing tech platforms from liability to condition that immunity on responsible, reasonable content moderation practices. We can ensure that platforms respond to defamatory deep fakes, cyber stalking, and other harmful illegality without extirpating expression online. The internet will not break. We need only break the spell of cultish devotion to free speech absolutism, to clear the ground for pragmatic reconstruction of a sound and safe online sphere. Franks’s bold, eloquent, and immensely insightful work can serve as a jurisprudential foundation for dispelling such illusions.

 Frank Pasquale is a Professor of Law at the University of Maryland Francis King Carey School of Law. You can reach him by e-mail at pasquale.frank at

Danielle Keats Citron is Professor of Law at Boston University Law School. You can reach her by e-mail at dkcitron at

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