Back Again: Situating Constitutional Advice and the Oversight Board in the Field of Digital Constitutionalism
As the Oversight Board establishes its own interpretation of content moderation practices on social networks, its own reasoning may travel back to constitutional democracies. National courts may in some cases find these pieces of interpretation persuasive, although not precedential.[793] In any case, however, courts will also have at their disposal the normative core of their own constitutions that can be used to both decide cases and continue the construction of local narratives of belonging through speech.
Legislatures are unlikely to cease regulating platforms, social networks included, on account of the Board’s work. As these processes continue, we may ask what does the constitutional advice perspective add to the picture.As a conceptual device, constitutional advice can be a useful addition to the imaginary of digital constitutionalism. Assuming that the latter’s aim is to limit both state and private power,[794] corporations need adequate framing. It is undisputable that their sway over the digital worlds involves power of public significance. Various self- regulatory mechanisms have yet to assuage corporate dominance in this regard. For instance, while the Board has invoked international freedom of expression standards, it can still review only a fraction of cases that involve content removal and may not significantly scrutinise the technological architecture that makes content available.[795] Furthermore, social networks continue to rely on ‘monetisation of engagement’.[796] To speak via social networks requires one’s presence to be constituted through data, which is then leveraged by platforms.[797] Additionally, places where speech is reproduced are technologically constituted and how these regulate expression remains opaque and difficult to affect through law alone.[798] Under the circumstances and given the volume of speech hosted online, social networks and platforms generally retain power over evaluating speech, as the standards they set for the communities they enable may also shape ‘social norms and speech norms’.[799] Thus, the Board’s existence should not be an incentive for the states to stop developing schemes that restrict corporate power.
The advantage of constitutional advice in this enterprise is threefold. To begin with, it acknowledges the power held by corporations and is sensitive to their inbetween status as private entities with public power. As such, constitutional advice does not require us to identify particular corporate entities or their supervisory organs, such as the Board, with a form of public power known to state-based constitutionalism. For instance, we do not have to declare the Board a court in order to have it maintain some constitutional significance. We may acknowledge that it is an inbetween institution that furthers a reflection on how freedom of expression is to be applied in digital worlds.[800] Its decisions and, indeed, the design choices made by platforms may have constitutional significance, but they do not bear it by default. The ‘constitutional’ status will still hinge on how they are evaluated through processes within individual jurisdictions. In sum, this furthers an understanding of separation of powers in a new environment. Corporations may well wield significant power, but they do not have the power to endow them with constitutional meaning. In this sense, the lens of constitutional advice may moderate the interaction between the state and corporate influence. It is the struggle between the two that may create the space to restrict both.
Secondly, constitutional advice is open to the malleability of contemporary belonging. In literatures beyond legal scholarship, it has been noted that ‘[p]eople need access to cultural meanings in order to live a life that is meaningful’ and that ‘the world is not divided up neatly into particular cultures wedded to every commu- nity’.[801] In the age of digital speech, our ability to draw from a variety of sources in constructing what Balkin called a ‘democratic culture’ has increased exponentially. Indeed, while speech could normally be placed within and understood by reference to a more stable and a relatively clear-cut group, a ‘speech community’,[802] this has become precarious. In place of some form of pre-existing community that can be presupposed by speech, we are now faced with speech that is used to construct individual belonging, an instrument ‘to move in and out of particular social formations, including digital ones’.[803] Speech can then be said to constitute belonging and communities to which one belongs, particularly where, as is the case in the Internet, it is the act of speaking that makes one present and it is the exchange of digitally mediated speech that creates communities unbounded by clear-cut lines.
Constitutional advice in the field of freedom of expression is open to this fluidity as it does not normatively accord particular forms of speech above others. Belonging through speech can be defined differently in the context of a variety of communities and the way this belonging is addressed by corporations can be a form of constitutional advice that provides meaning to freedom of expression. At the same time, these forms of belonging do not necessarily need to become the standard for all other forms of expression, as it was the case with political speech and belonging to a demos.Thirdly, constitutional advice allows us to reflect on how interpretations of freedom of expression may not only be exchanged between corporations and (supra)national jurisdictions governed by some standard of constitutionalism, but
between different regulatory layers applicable to speech. In itself, the Board’s relatively narrow focus on content moderation may indeed be said to be an insignificant restriction when compared to the power that is still at the corporate beck and call.
If we restrict our imagination to freedom of expression as the subject matter of disputes before courts or forms of alternative dispute resolution, we instil additional restraints on the capacity of this fundamental right. Most germane to this chapter, we separate matters of speaking and belonging from segments of freedom sequestrated under other human rights. Freedom and data protection may then be seen as mutually exclusive normative registers. Speech can be protected even if its exercise includes violations of the speaker’s data protection or privacy, which does not fall under the rubric of ‘content moderation’. If speech can be seen as a matter of data protection, its expressive dimensions may become endangered.[804] By contrast, as constitutional advice foregrounds constituting communities and belonging, the visions it incorporates do not have to remain constrained to a single controversy nor do they need to be restricted only to the usual territory of freedom of expression.
Insofar as speech requires protection of other aspects of one’s liberty, such as data protection, the advice provided on the basis of freedom of expression can be used to mobilize measures required to ensure its enjoyment in full. The Oversight Board’s first decisions attest to this. Not only did the Board make procedural suggestions to further the protection of freedom of expression, but it paid particular attention to the way technology impacts the spaces for speech and conditions one’s freedom. These points of contention may help inform state-based regulatory schemes that will not centre solely on content moderation, but will consider positive measures that need to be taken for speech to be exercised as freely as possible.Ultimately, constitutional advice may add to the toolbox of digital constitutionalism for its features that overlap with the recent developments in European digital constitutionalism. In this sense, we agree with De Gregorio’s interpretation of the latter as leaning towards protecting any threats to human dignity that are based in new technologies.[805] Constitutional advice is consonant with this normative aim as, in terms of freedom of expression, it seeks to articulate the rights of individuals in interaction with others and in relation to the technologically mediated environment that enables their presence.
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