David Pozen — Authoritarian Constitutionalism in Facebookland

Some issues involved in "content moderation" on social media (Facebook, Twitter, etc.).

Perhaps Facebook’s content moderation regime is less like a common law system than like a system of authoritarian or absolutist constitutionalism. Authoritarian constitutionalism, as Alexander Somek describes it, accepts many governance features of constitutional democracy “with the noteworthy exception of … democracy itself.” The absence of meaningful democratic accountability is justified “by pointing to a goal—the goal of social integration”—whose attainment would allegedly “be seriously undermined if co-operation were sought with [the legislature] or civil society.” Absolutist constitutionalism, in Mark Tushnet’s formulation, occurs when “a single decisionmaker motivated by an interest in the nation’s well-being consults widely and protects civil liberties generally, but in the end, decides on a course of action in the decisionmaker’s sole discretion, unchecked by any other institutions.”

The analogy to authoritarian/absolutist constitutionalism calls attention to the high stakes of Facebook’s regulatory choices and to the awesome power the company wields over its digital subjects as a “sovereign” of cyberspace. It also foregrounds the tension between Facebook’s seemingly sincere concern for free speech values and its explicit aspiration to make users feel socially safe and “connected” (and hence to maximize the time they spend on the site), a tension that is shaped by market forces but ultimately resolved by benevolent leader and controlling shareholder Zuckerberg....

Balkinization
Authoritarian Constitutionalism in Facebookland
David Pozen | Professor of Law at Columbia Law School