Introduction
‘There and back again’ is a phrase familiar to any reader of Tolkien’s ‘The Hobbit’. It is the second half of the novel’s title, encapsulating the gist of the narrative. Bilbo Baggins, the eponymous hobbit, sets out from his cosy home in the Shire, sharing company with a band of dwarves and a wizard, on a quest to the distant Misty Mountains.
There they face a dragon usurping an ancient dwarven stronghold. Bilbo, of course, travels ‘back again’ at one point. An adventure his kind would not normally undertake changes him and exposes him to an ancient relic that would come to play a major role in the fate of his entire world.When it comes to regulating speech on the Internet, the language of constitutionalism has become a travelling hobbit. In a most trite sense, courts have applied fundamental rights, most notably freedom of expression, to online communication.[672] Although this may be ‘business as usual’ for courts, for theorists the practice may represent a form of ‘digital constitutionalism’, an effort to rethink how law should address the digital sphere on the basis of constitutionalism’s ‘values and principles’.[673] Rather than being just adjudication in the ‘world of bits’,[674] digital constitutionalism is an expansive quest of reversing the law’s complicity in the rise of ‘informational capitalism’.[675] Constitutionalism gone digital is to provide normative benchmarks for legal checks and balances against the untrammelled impact of technology on fundamental rights.[676] The overall aim is to limit power, particularly the unaccountable power of international corporations that shape the digital landscape.[677]
Against this background, this chapter asks how may freedom of expression shape private power that dominates online communication.
An incentive for this research was provided by the Oversight Board, empowered to review content removal decisions on Facebook and Instagram, which in its first decisions invoked ‘international freedom of expression standards’. In the literature, the Board is explored as an adjudicatory body which, while ill-suited for fashioning universal freedom of expression standards, may facilitate user input in shaping corporate content moderation criteria and in controlling their application.[678] We argue that the court metaphor includes an understanding of freedom of expression common to limiting power of individual governments. This conceptual lens fails to bring out the interaction between constitutionally-based governments and corporations founded in economic and technological power. Drawing primarily on Balkin,[679] Sander,[680] Viellechner,[681] Suzor,[682] and Suzor’s collaborative work with Van Geelen and Myers West,[683] we argue that imagining the Board as a constitutional advice-giver may forefront this interaction and expand our understanding of freedom of expression that ‘travels’ within it. In our perspective, freedom of expression is not just a matter to be adjudicated upon in disputes over content removal, but forms a field of constitutional advice that moderates interventions from the state and provides space for limiting corporate influence. It is this understanding of freedom of expression that enriches the role it may have in limiting private power in the digital age.The first section of the chapter sets the stage for our argument by describing the problematic intersection between speech and private power on the Internet. Taking up Facebook as the case study, this section describes the impact it has had on speech and shows how the pressures from national governments and civil society have led it to establish the Oversight Board as a form of control over content removal decisions.
In this section of the chapter, we also examine the Board’s first decisions to show how the Board has taken upon itself the interpretation of ‘international freedom of expression’ standards. This, we argue, poses the question of the role of freedom of expression in limiting private power.In the second section of the chapter, we turn to the existing literature on the Board and demonstrate that it is founded upon studying the new oversight mechanism as a form of adjudication. Although this envelops the Board in a familiar, judicial frame, it essentially restricts our view to how the Board’s work compares to a (supra)national court and how it fails to reach the judicial ideal. In this understanding, how we understand freedom of expression falls under the sway of how we usually think of it, as a judicially enforced barrier against encroachments on individual freedom.
The third section of the chapter builds up an alternative perspective of both the Board and freedom of expression. Instead of comparing the Board to a court, we turn to the Board’s interaction with constitutional democracies. We argue that constitutional advice may be deployed as a concept that frames this interaction. In this section of the chapter, we outline the meaning of ‘constitutional advice’, differentiating it from cognate concepts, such as ‘migration of constitutional ideas’ and ‘constitutional borrowing’. We suggest that an actor’s status as a ‘constitutional advice-giver’ hinges on the recipient of the advice. We then turn to freedom of expression and ask what are the considerations it places before legitimate constitutional advice-giving. We posit that freedom of expression as a field of constitutional advice places the matter of belonging and community-building to the fore.
The fourth section places the Board against this alternative perspective, drawing broader lessons for fields of digital constitutionalism and constitutional advice. Whereas freedom of expression jurisprudence traditionally understood could presuppose a community within which speech is expressed and evaluated, the acts of speaking and constituting are interlocked in the digital world. We argue that placing constitutional advice in this context has a number of advantages. First, constitutional advice may be a useful way to think about the division of power between corporations and the state. Secondly, constitutional advice is usefully open to indeterminate and plural nature of belonging in the digital sphere. Finally, content moderation in itself forms only a small part of what freedom of expression requires in an age of digital constitutionalism. Understanding the role of constitutional advice in this context may help in conceptualizing not just how understandings of free speech may travel between states and corporations, but between different regulatory layers applicable to contemporary digital speech, such as data protection.
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