A Road Less Travelled: The Metaphor of the Constitutional Advice-Giver

In this section of the chapter, we want to advance constitutional advice as an alterna­tive conceptual lens for studying the Oversight Board. We firstly tackle the concept of constitutional advice, constructing it as a heuristic concept that allows to capture the ‘soft’, in principle unbinding use of constitutional reasoning (Sect.

9.4.1 Constitutional Advice as a Framing Device

Even though constitutions are bound to the constitutional democracies they frame, theories on exchange ofideas between these constitutional orders are well-established in the literature. Concepts such as ‘migration of constitutional ideas’, ‘constitu­tional transplants’ or ‘constitutional borrowing’, for instance, have been extensively explored.^[757] ‘Constitutional advice’ in particular is a concept that has thus far been used primarily by scholars investigating constitution-making processes. They have asked how may external actors advise those who are in the process of establishing their constitutional order.^[758] While concepts such as ‘migration’, ‘transplantation’ or ‘borrowing’ of constitutional notions need not be restricted to constitution-making and may address constitutional adjudication and comparative constitutional law generally, ‘constitutional advice’ is thus normally a more specialized notion.

When we say that the idea of ‘constitutional advice’ can be productively trans­ported to the interaction between the Oversight Board and constitutional democra­cies, we partially depart from the existing use of the concept. Unlike Ginsburg and Tushnet, we are not concerned with the process of constituting a more or less novel foundational act, a ‘large-C’ constitution.

Although our understanding of constitutional advice does not coincide with the existing literature, the basic idea is fundamentally the same. We define constitutional advice as an interpretation providing meaning to a matter of constitutional signifi­cance without necessarily being able to produce any effect on its own. Thinking of such interpretative practice as ‘constitutional advice’ allows us to be alive of its exis­tential bond to constitutional matters while acknowledging that it remains separate to any constitution as a by and large formalized and binding framework of govern­ment. It also allows us to take account of different actors that may be involved in an interpretative enterprise. Unlike the court metaphor, where the judicial role is used to structure a normative evaluation of the Board, in the framing of constitutional advice constitutional orders co-exist with the Board and their interaction is the core consideration. Constitutional advice may then be of particular use in thinking about governing the Internet, which by its very design depends on transnational actors that are unbound by any single constitutional framework.

When transposing the notion of constitutional advice into a new environment, we also transport the concept’s ambiguities. To begin with, while some actors in the interpretative enterprise may assume that they are working with the constitution as a formal document and that constitutional matters are only those that are laid out in its provisions, others may argue that a matter of sufficient weight is to be considered constitutional in any case.^[762] An additional ambiguity may emerge from how one perceives the nature of a constitution, whether it is seen as a juristic or a more civic creature.^[763] Insofar as the constitution is perceived to be the stuff of minds professional in law, the meaning of the term ‘constitutional’ and, by conse­quence, constitutional advice, will fall under the sway of lawyers, particularly that of (constitutional) judges.^[764] Should one adopt a more expansive perspective of the term, expressed, for instance, by Haberle,^[765] what counts as constitutional may include the meaning attributed to the term by a broader scope of actors, possibly even citizens themselves.^[766]

The term ‘advice’ is also faced with complexities. We have thus far adopted the common assumption that to ‘advise’ is to provide non-binding guidance on a constitu­tional matter. Indeed, constitutions themselves may either empower or require those holding constitutional powers to seek input from other institutions of government or external actors. Take for instance bodies of experts convened in order to provide a draft of legislation. While they may not engage in binding constitutional interpreta­tion, their work undoubtedly provides a possible understanding of how the legislative power should be employed. Nevertheless, what a commission of drafters produces can only be considered as advice, given that, in a parliamentary democracy, the exec­utive and the legislature may completely overhaul their suggestions^[767] and enact a different law.

Given the complications involved in both components of constitutional advice, the functions of the practices covered by the concept are ambiguous in their effect. Firstly, constitutional advice can be used to affect the boundaries of the powers wielded by offices of government. If it is provided that advice on a particular matter must be acquired prior to exercising power, constitutions may influence the powers of government temporally and in their scope. An advisory procedure may prolong the time required to exercise power, thus potentially allowing for deliberation and democratic contestation. In terms of scope, obligating an actor to consult another prior to the exercise of power may serve as a restriction on how this power is exercised. However, whether this actually occurs will depend on the features of an advice­giving scenario. This is particularly so if the ability to construe advisory sources of constitutional meaning is within the power of those who are on the receiving end of the advice.

Secondly, constitutional advice may provide perspectives that they may otherwise be absent. As Viellechner notes, ‘political regulators sometimes lack the knowledge required in order to take fully informed decisions’, particularly when faced with technologies that may only be really understood with expert help.^[768] Indeed, courts themselves face ‘decisional uncertainty’ in having to interpret the law to new tech­nologies.^[769] Contemporary democracies thus rely on bodies of experts in both regu­lating particular issues and enforcing these regulations. In addition to the earlier example of expert-dominated law drafting committees, contemporary states estab­lish regulatory agencies that patrol fields too technical for the legislature and central departments of the administration.^[770] Knowledge is in this sense the stuff of power and what counts as knowledge and, concomitantly, a use of constitutional advice in manipulating it, may also influence the scope of power of the offices established by the constitution.

Constitutional advice may then be a treacherous bridge between expert and polit­ical sphere in resolving matters of constitutional meaning. Here the ways different branches of power perceive an issue may not only require additional knowledge, but may be made dependent on it. Courts, for instance, have been noted to be too lenient to the expert opinion of regulatory agencies in applying the law, thus potentially endangering the judicial protection of fundamental rights.^[771] Similarly, the highly technical ways Internet intermediaries operate have been recognised as a signifi­cant obstacle for effective regulation and protection of individual’s rights.^[772] Thus, the knowledge contained in constitutional advice does not necessarily advance the causes championed by the dominant understanding of constitutionalism.

The challenges standing before constitutional advice are heightened when the exchange of constitutional interpretation does not occur between actors belonging to the same constitutional order, as is the case here. Useful lessons can be drawn from the literature that explores constitutional advice in constitution making episodes. External actors, individual and corporate, come to the constituent table with agendas and suggestions that may substantially diverge from those on the field and that may fail to constructively translate into what is expected by the advice-giver.^[773] Indeed, the advice-giver’s role itself may become warped by the political circumstances and dominant actors so that their presence and input becomes an instrument of local political processes.^[774] As constitutions are never created in a vacuum, any attempt to steer the process through advice inevitably has to face local pressures not necessarily foreseen by the advice-giver. Much then depends on the circumstances within which advice is attempted to be given.

These lessons from constitution making teach us that constitutional advice is not so much an act of the advice-giver as it is a construct that strongly hinges on the recipient of the advice and the resources they have at their disposal for constructing the presence of the advisor and their advice.

As we place constitutional advice in the confines of established constitutional orders, one may wonder whether the whole enterprise is superfluous in the face of other, better-established metaphors, such as constitutional migration, borrowing, and transplants.^[776] Constitutional advice is different to its alternatives as it does not involve an interaction between two constitutional orders. In fact, it involves interpretation that is produced by an actor who can be wholly separate from any recognizable constitutional order. To say one is providing constitutional advice then does not require us to claim that they themselves are necessarily governed by a constitution. We also do not need to argue that there exists a global constitutional order of some kind, if, say, a transnational actor is claiming to have an advisory authority. Finally, constitutional advice allows us to study constitutional reasoning in its liminal state. The advisor is projecting their understanding of a matter onto a ‘constitution’, but they are unable to provide that perspective with legally binding authority. To think of constitutional advice is then to think of how constitutional interpretation may be mobilised as a politico-legal resource and of how it may be shaped by the law.

The literature on constitutional advice appears to encompass both descriptive and normative research objectives. We may ask how has constitutional advice-giving operated in practice. Secondly, given that the role of a constitutional advisor is a construct, we may ask what are the normative considerations that are placed before constitutional advice. In our case, we want to ask how does freedom of expression shape the spaces for creating and disputing constitutional advice. As we will argue, the terrain is not uniform. Freedom of expression is not a monolithic barrier to consti­tutional advice nor is it an empty space that may be freely populated by constitutional advice of all sorts. Having this in mind expands our understanding of how freedom of expression may shape the interplay of the Board and constitutional democracies, giving us a new glimpse into the possible roles of freedom of expression in the framework of digital constitutionalism.

9.4.2 Normative Frames of Constitutional Advice Based on Freedom of Expression

Insofar as constitutional advice is an unbinding use of constitutional reasoning, it may seem counterintuitive to search for normative constraints that allow us to evaluate the practice. Constitutional advice may be inspired by whatever understanding of a constitution that tickles one’s fancy. Although this may well be the case, if the advice is to engage an existing constitutional order, it needs to conform to the local normative core of its constitution in order to be cognizable as a form of constitutional reasoning. This is yet another lesson that can be drawn from the literature on constitutional advice in constitution making scenarios.^[777] Here we want to unpack the normative core of freedom of expression that may condition constitutional advice in its field.

At first glance, our plan is faced with considerable difficulties. Freedom of expres­sion may be included among ‘a common set of core institutions’^[778] adopted by all contemporary constitutions. Nonetheless, as we had already noted, there are differ­ences between how the same idea is reflected in individual jurisdictions. The Internet may have provided a space where these differences meet, sometimes problemati­cally.^[779] It may have incentivized some courts to consider online speech as a more or less exceptional case.^[780] Legislatures may have in some cases been motivated enacted a more or less expansive legislative framework on intermediary liability, social networks included.^[781] Nonetheless, the Internet still has to lead us to a uniform understanding of what free speech entails.

Given that there is no single ‘freedom of expression’ that can serve as a normative benchmark for constitutional advice, we may turn to the underlying structure of this fundamental right in order to define commonalities that unite the heterogeneity of possible interpretations. A clue to this may be found in a commentary Owen Fiss had written on the US free speech ‘tradition’, a chain of jurisprudence building upon the First Amendment.^[782] More specifically, Fiss argues that autonomy maybe seen as the core value animating free speech, with a variety of judicial approaches developing around its gravity.^[783] This is not to say that the American understanding of freedom of expression can be excised from its native context and simply stretched across the globe. Far from it. What interests us here is that evaluating individual speech involves an appreciation of the belonging it enables. We need not argue that state- enforced individual autonomy should carry the day in the process. We only need to acknowledge that speaker’s interests are regularly considered in correlation with the interests of their audience, the general public and, in the age of online speech, platforms that facilitate communication.^[784]

Hence, there may well be a plurality of ways we may interpret freedom of expres­sion in a variety of legal contexts, but there exists in all cases an effort to position the speaker in relation to a broader community. What may appear to be a resolu­tion of individual disputes in a court-centric perspective becomes simultaneously an interpretation of the role of speech in constituting groups and belonging to them.^[785] After all, the very exercise of all other fundamental rights may be seen as hinging on whether one may freely speak.^[786] This, in turn, presupposes a life with others.

The insight we are relying upon does not establish a single normative scheme that can reveal to us what is it that belonging entails. Such a scheme would require a single understanding of freedom of expression to flesh it out. Nonetheless, it does provide a conceptual orientation when thinking about constitutional advice. Concrete cases decided by the Oversight Board, by national courts or regulatory schemes adopted by legislators can be read as an exercise in situating speech as an instrument of belonging. Constitutional advice is then less related to individual controversies, which can always be decided within each jurisdiction in accordance with the norma­tive core of a particular constitutional order. It is related more to presenting alternative perspectives on belonging, a matter that may be of some use on the Internet, where these different understandings may clash.

That belonging has become a topic issue in the era of digital speech has already been noted in the literature. Balkin’s insightful paper on a shift of justification that underpins freedom of expression forcefully advances this claim. Although his piece is couched in the framework of the First Amendment, the claim that political speech traditionally bears particular importance in freedom of expression jurisprudence is by and large uncontroversial beyond American borders as well.^[787] Speech consid­ered essential to democracy may not be an all-encompassing, practically absolutely protected category as it is in the American free speech tradition, but it is still regu­larly recognized as requiring heightened protection from interference.^[788] By contrast, Balkin argues, the changing conditions in which speech is exercised, heightening ‘interactivity, mass participation, nonexclusive appropriation, and creative transfor­mation’, have led to a shift in how we should think about freedom of expression. This fundamental right should now be seen as enabling a participation in constructing a ‘democratic culture’.^[789] Building this culture transcends the classical focus on belonging to a demos alone, which was the dominant concern of a ‘traditional’ understanding of freedom of expression.

Given that platforms, and social networks in particular, are fora for groups consti­tuting themselves through common exercise of freedom of expression,^[790] the way they order belonging through technical means and conditions of use may be construed as a source of constitutional advice. Suzor’s important work on bringing public law to bear on platform governance shows how freedom of expression may inform consti­tutional advice in this respect. Individual speech, as was the case earlier, cannot be evaluated in the abstract. It must be juxtaposed to ‘the purpose and use of the community’ within which it is expressed.^[791] As Suzor convincingly demonstrates, those offering a space of belonging may themselves place limitations on individual speech and in some cases, it may be necessary for the state to step in and guarantee individual’s right to self-determination. When and how may this be done remains unclear.^[792] This, in particular, maybe the key area in which constitutional advice may be given and where our understanding of freedom of expression may be informed, although not entirely overruled, by corporate interpretation of freedom of expression.

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