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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 Rahmansabeel.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?
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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? No Responsibility Partial Responsibility Increase in “constitutional hardball” Decline in mutual tolerance Erosion of administrative state Increase in views of the opposition as illegitimate Erosion of the rule of law Contributing to the strength of anti-system parties Increase in state control of the media Erosion of public faith in democratic rule Decline in institutional forbearance Loss of gatekeeping in party nominating processes Furthering state and ruling party media coordination Decrease in public faith in institutions Decreased accountability of political elites and institutions 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
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