Political Polarization, the Internet, and Free Speech

Guest Blogger

For the Balkinization symposium on Free Speech in Crisis and the Limits of the First Amendment.

Robert C. Post 

            Contemporary concepts of free speech first arose with the invention of the printing press, which produced an entirely new form of social organization, the “public sphere.”[1] What we now call the “public”[2] emerged within the public sphere. It was created by “the circulation of texts among strangers who become, by virtue of their reflexively circulating discourse, a social entity.”[3]

            What we call “public opinion” arises within the public sphere. Public opinion has in turn facilitated new forms of political governance. For the past century it has been common to observe that democracy is best understood as “government by public opinion.”[4] The public, in the words of Michael Schudson, is “the fiction that brings self-government to life.”[5]

Public discourse is the medium through which modern societies create a public opinion capable of controlling state institutions. If the seventeenth century witnessed the creation of modern states powerful enough to be charged with the elemental task of imposing social peace,[6] those states had by the eighteenth century become so successful that nations struggled to ensure their accountability to civil society. During the age of constitutionalism, the ambition was to find a way to use politics to cabin state power.

Politics, as Hannah Arendt has taught us, shifts “the emphasis . . . from action to speech, and to speech as a means of persuasion.” “[T]o be political” is to reach decisions “through words and persuasion and not through force and violence.”[7] The upshot is that for modern societies the public sphere has become a distinctive social organization, oriented around forms of communication that we carefully distinguish from action. The hope is that the public sphere will produce a public opinion capable of exercising political control over state power.

            In inventing the modern American ideal of freedom of speech, Louis Brandeis theorized that it was only through public discussion, through the processes of persuasion and bargaining that constitute politics, that the nation could maintain the unity necessary for the survival of a modern nation state:

The right to speak freely concerning functions of the federal government is a privilege or immunity of every citizen of the United States . . . . The right of a citizen of the United States to take part, for his own or the country’s benefit, in the making of federal laws and in the conduct of the government, necessarily includes the right to speak or write about them; to endeavor to make his own opinion concerning laws existing or contemplated prevail; and, to this end, to teach the truth as he sees it. . . . Full and free exercise of this right by the citizen is ordinarily also his duty; for its exercise is more important to the nation than it is to himself. Like the course of the heavenly bodies, harmony in national life is a resultant of the struggle between contending forces. In frank expression of conflicting opinion lies the greatest promise of wisdom in governmental action; and in suppression lies ordinarily the greatest peril.[8] 

Polarization undermines the ordinary political processes by which public opinion is formed. If polarization becomes sufficiently severe, if it reaches the existential levels of friend/enemy opposition famously described by Carl Schmitt,[9] then public opinion can no longer guide the state, and freedom speech will have lost its function. That is why Chantal Mouffe, while strongly insisting that politics must reflect relationships of profound opposition, nevertheless distinguishes “agonism” from the kind of “antagonism” in which “the two sides are enemies and who do not share any common ground” and so “treat their opponents as enemies to be eradicated.”[10] In a relationship of agonism, by contrast, “[a]dversaries do fight—even fiercely—but according to a shared set of rules, and their positions, despite being ultimately irreconcilable, are accepted as legitimate perspectives.”[11]

We might say that the purpose of freedom of speech is a value meant to underwrite specific form of social practice that is politics, and that has been adopted in the modern station to allow persons in a society to agree to disagree. Citizens can disagree about what to do, but they agree that they belong to a common polity that will share a common fate. They therefore agree to use politics peacefully to settle differences among themselves. The practice of politics is thus to be distinguished both from open warfare, which occurs between antagonists who wish to destroy each other, and from social relationships that aspire to forms of cooperation and coordination, which presume agreement rather than disagreement. Examples of such cooperative relationships include bureaucracy and law.[12]

The contemporary internet encourages the disintegration of politics through polarization. The feature of internet “bubbles,” which reinforces alterity, has been well discussed and analyzed. But two additional mechanisms, which are more subtle and pervasive, should also be stressed. On the internet information travels without friction at virtually zero marginal cost. This has increased the scale and virality of internet communication. The internet is also the first major form of mass communication to be interactive.

Traditional mass media were controlled by elites who created structures of communication that were quintessentially top down. Social media like Facebook, by contrast, have no equivalent gatekeepers. Facebook may use algorithms to control feeds, but these algorithms do not warrant the authenticity and epistemological value of the information they distribute.[13] They instead facilitate decentralized and dispersed conversations among users.[14] Those who participate in social media are thus less like the readers of a newspaper than they are like persons who gather to converse on a street corner or around the water cooler at work.  

This has potentially important consequences for the creation of epistemological authority. In prior forms of mass communication, gatekeepers warranted the epistemological authority of the news they conveyed. But Facebook features no such elite gatekeepers. The structure of epistemological authority produced on social media is more like that created in self-reinforcing circles of gossip. Some have celebrated traditional gossip because it created nodes of resistance to socially dominant ways of thinking. Gossip has this capacity because it is not just about the exchange of information. It is also about the creation of group solidarity and identity.[15] This solidarity underwrites self-validating forms of epistemological authority. The dynamics of a gossip circle become the measure of truth and falsity.

Traditional gossip is frequently dismissed as a pre-modern phenomenon. In contrast to mass media, gossip requires face to face interactions, which seems to render gossip irrelevant in the context of large nation states whose publics stretch over millions of persons. But the internet creates, for the first time, the possibility of large, virtual gossip groups that are connected through medium of the internet. This has vast implications for the social construction of epistemological authority.[16] It fractures public epistemological authority and disperses it into competing circles of gossip. It democratizes truth.

The creation of gossip groups also has important implications for the phenomenon of polarization. Although traditional mass media often targeted discrete groups who were potentially at odds with each other, social media actually create such groups.[17] As social media increasingly integrate the virtual public sphere into the conduct of everyday life, so does its potential to create powerful groups whose influence permeates ordinary living. These groups can endow their members with identities that empower them to negotiate the tasks of everyday life. Such groups can acquire epistemological authority sustained by the social solidarity of the group itself. Because circles of gossip define themselves in terms of the distinction between those who are inside and those who are outside, interactive social media like Facebook can foster a terrifying tribalism, homologous to that which has come to dominate our public space. The combination of polarization and democratized epistemological authority creates a toxic brew.

The implications for democracy of these developments are obviously profound. As we lose the ability to identify figures of authority whom the public can trust to distinguish truth from fiction, we correspondingly lose the capacity to establish common facts. Hannah Arendt has rightly observed that we cannot inhabit a common political world unless we acknowledge shared facts.[18] Democracy cannot survive in the absence of the epistemological authority necessary to create a shared political world. By unleashing epistemological antinomianism, the internet threatens the capacity of democracy for coherent self-governance.

As Ross Douthat recently observed in the New York Times in the context of vaccine skepticism, the main theory of countering misinformation ‘seems to be to enforce an intellectual quarantine, policed by media fact-checking and authoritative expert statements. And I’m sorry, but that’s just a total flop. It depends on the very thing whose evaporation has made vaccine skepticism more popular – a basic trust in institutions, a deference to credentials, a willingness to accept judgments from on high’.[19] The social problem of misinformation, as distinguished from misinformation itself, concerns the loss of epistemological authority. The credulous circulation of untrue information is a symptom of this underlying social dislocation. One can treat the symptom, of course, but the underlying disease will likely manifest itself in other ways. Under conditions of polarization, suppression of misinformation that is experienced as illegitimate can easily lead to an existential opposition between friends and enemies.

Severe polarization thus potentially undermines the entire point of freedom of speech. We cannot now speak to each other because something has already gone violently wrong with our political community, which is to say with our antecedent commitments to a common political destiny. To conceptualize this problem as one of free speech is to imagine that the cure is simply to encourage more speech. It is to fantasize that the ties that bind us together will somehow be refreshed merely because we speak to each other more freely. But this is an illusion, a cruel mirage cast by the allure of a free speech principle that has somehow floated free from the social practices in which it should be embedded.

Now more than ever we need to understand why we have come to distrust each other, to mistrust political authority, and to imagine ourselves as tribal groups at war with one another. More speech of the wrong kind can exacerbate, not heal, these terrible divisions. The underlying issue is not our speech, but our politics. So long as we insist on allegiance to a mythical free speech principle that exists immaculately distinct from the concrete social practices, we shall look for solutions in all the wrong places.

Our country is now so fragile, our democratic future so precarious, that every such misstep is fraught with danger. It is imperative that we arrive at a clear and accurate diagnosis of the disease that each day further corrodes our precious polity. It is time to open our eyes.

Robert C. Post isSterling Professor of Law, Yale Law School. You can reach him by e-mail at robert.post@yale.edu.