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.
[1] On the public sphere, see Jürgen Habermas, The Structural Transformation of the public Sphere: An Inquiry into a Category of Bourgeois Society (Thomas Burger trans., MIT Press 1989); Charles Taylor, Philosophical Arguments 257-87 (Harvard University Press 1995).
[2] John B. Thompson, The Media and Modernity: A Social Theory of the Media 126 (1995).
[3] Michael Warner, Publics and Counterpublics 11-12 (2002). Warner adds that “one of the most striking features of publics, in the modern public sphere, is that they can in some contexts acquire agency. . . . They are said to rise up, to speak, to reject false promises, to demand answers, to change sovereigns, to support troops, to give mandates for change, to be satisfied, to scrutinize public conduct, to take role models, to deride counterfeits.” Id. at 122-23.
[4] Carl Schmitt, Constitutional Theory 275 (Jeffrey Seitzer ed. & trans., Duke Univ. Press 2008) (1928). Democracy is “the organized sway of public opinion.” Charles Horton Cooley, Social Organization: A Study of the Larger Mind 118 (Charles Scribner’s Sons 1909). For an account of the emergence of this concept of democracy, see Robert Post, Citizens Divided: Campaign Finance Reform and the Constitution (Harvard University Press 2014).
[5] Michael Schudson, Why Conversation is Not the Soul of Democracy, 14 Critical Stud. Mass Comm. 297, 304-05 (1997). On the relationship between the development of printing and the creation of the nation state, see Benedict R. O’G. Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism (1991).
[6] The great 17th century theorist Hobbes argued that the essential task of the state was to preserve peace and prevent what otherwise would be a war of all against all.
[7] Hannah Arendt, The Human Condition 26 (University of Chicago Press 1958).
[8] Gilbert v. Minnesota, 254 U.S. 325, 337-38 (1920).
[9] Carl Schmitt, The Concept of the Political (George Schwab trans. 2007).
[10] Chantal Mouffe, On the Political 10 (2005).
[11]
Id. at 52.
[12] For a discussion, see Robert Post, Theorizing Disagreement: Reconceiving the Relationship between Law and Politics, 98 Calif. L. Rev. 1319 (2010).
[13] José Van Dijck, The Culture of Connectivity: A Critical History of Social Media (Oxford: Oxford University Press, 2013) p. 47. Cf. Claude Castelluccia and Daniel Le Métayer, European Parliamentary Research Service. Understanding algorithmic decision-making: Opportunities and challenges (Brussels: European Union, 2019).
[14] Beverly Skeggs and
Simon Yuill, ‘The methodology of a multi-model project examining how Facebook
infrastructures social relations’ (2015) 19(10) Information, Communication & Society 1356.
[15] Robin Dunbar, Grooming, Gossip, and the Evolution of Language (Cambridge: Harvard University Press, 1996).
[16] See, e.g., Neil F Johnson et al., ‘The online competition between pro- and anti-vaccination views’ (2020) 582 Nature 230.
[17] Eli Pariser, The Filter Bubble: How the New Personalized Web Is Changing What We
Read and How We Think (New York: Penguin, 2011).
[18] Hannah Arendt, Between Past and Future (New York: Viking, 1968) p. 238.
[19] Ross Douthat, ‘Go ahead: Debate Robert F. Kennedy Jr.’,
New York Times, 24 June 2023,
https://www.nytimes.com/2023/06/24/opinion/rfk-jr-joe-rogan-debate.html.