Introduction
Social media inflict multiple harms on liberal democracy. Online platforms thrive on propagating emotionally inflammatory content that maximizes user engagement. Too often that entails amplifying disinformation, hate speech, online extremism, and deep-seated partisan animosity. Tellingly, as documented in testimony before the House Select Committee to Investigate the January 6th Attack, in the weeks following the 2020 presidential election, Facebook, Twitter, YouTube, and Reddit knowingly enabled a firestorm of vitriolic far-right election denial on their platforms. In so doing, a Select Committee staff report concludes, the platforms “helped to facilitate the attack on January 6th.”
More broadly, social media undermine the critical linchpins of democracy. While scholars debate exactly how and to what extent, the most comprehensive social science literature review to date concludes that social media are a significant factor in emergent autocratic populism, dwindling political and social trust, and growing polarization in established democracies. Another meta-analysis finds that social media use generally hampers gaining the political knowledge that is critical for effective democracy. Among other factors, social media foster a misperception that the “news finds me,” “that all the news I need to know will appear in my feed.”
Relatedly, social media have corrosive effects on democratic institutions. Democratic government cannot function without broadly accepted, legitimate political authority, some basic consensus regarding how to distinguish truth from falsity, and a sense that even ardent political opponents are part of the same polity, bound by a common fate. Yet online platforms radically undermine those pillars, challenging democratic political authority, fueling the disintegration of traditional and stable political parties, empowering free agent politicians who are not beholden to party leadership, heightening partisan animosity, and rendering effective government based on compromise exceedingly difficult. As election law scholar Richard Hasen notes: “Rather than improving our politics, cheap speech [through social media] makes political parties increasingly irrelevant by allowing demagogues to appeal directly and repeatedly at virtually no cost to voters for financial and electoral support, with incendiary appeals and often with lies.” As Hasen aptly concludes, the greatest danger facing democracy today “is a public that cannot determine truth or make voting decisions that are based on accurate information, and a public susceptible to political manipulation through repeatedly amplified, data-targeted, election-related content, some it false or misleading.”
The current state of affairs is untenable. Surely, it is incumbent upon the democratic state to combat social media’s palpable threats to democracy, even while carving out space for the diversity of voice and civic engagement that social media can offer. In that vein, recent years have seen a number of federal and state legislative proposals designed, among other things, to impose regulatory oversight over digital platforms, require transparency in content moderation, promote civic discourse, defend election integrity by prohibiting social media from carrying microtargeted political ads and banning the use of bots in political advertising, and holding social media companies accountable for targeted harassment, terrorist recruiting, and violations of federal civil rights laws on their platforms. Yet, as this Article enumerates, the neoliberal techno-utopianism and First Amendment jurisprudence that dominate American law, policy, and political thought have presented nigh-insurmountable obstacles to any serious consideration of these and other proposed initiatives designed to combat social media’s multivalent harms to American democracy.
The political theory and practice of “militant democracy,” I argue, provides a superior policy framework for defending democratic institutions against social media harms. Militant democracy arose as a central feature of postwar constitutionalism in Europe. It views democracy as inherently precarious, at risk of being undone at the hands of antidemocratic forces that, like Nazism in the Weimar Republic, exploit democratic freedoms to undermine democracy. Democracies, it posits, must resolutely defend themselves against avowedly antidemocratic forces and the use of manipulative propaganda to prey upon democracies’ weaknesses. No less importantly, democratic states must actively foster the basic political trust, social cohesion, equality of voice, and respect for diversity upon which enduring liberal democratic governance depends. At bottom, militant democracy counsels that enduring liberal democracy must rest on some approximation of the ideal, Habermasian public sphere in which citizens exercise collective self-determination through a discursive exchange of informed, reason-based views among equal participants, free of coercion, manipulative propaganda, and the undue influence of wealth and power.
Militant democracy encompasses a range of strategies designed to underwrite a robust, enduring liberal democracy. Most basically, European countries outlaw antidemocratic political parties, private militias, and terrorist incitement that pose a palpable threat to democratic governance. Concomitantly, they bolster inclusive, egalitarian participation in public discourse and protect minorities against effective disenfranchisement by forbidding group libel, hate speech, and Holocaust denial. To promote trustworthy information and fact-based democratic debate, they also generously fund independent public service media and sharply restrict potentially manipulative political advertising.
Unlike the neoliberal and classical liberal models that have long dominated First Amendment jurisprudence, the constitutional principle of militant democracy rejects the notion that the only available remedy for antidemocratic speech, hate speech, and manipulative propaganda is more speech. It recognizes, rather, that limits on speech may sometimes be critical to defending democracy. Speech restrictions must be proportionate and narrowly targeted as needed to defend against palpable threats to democracy, taking account of identifiable vulnerabilities in existing democratic institutions. From the militant democracy perspective, however, it is not a valid criticism of a measure that aims to counter serious harms to civic discourse merely to say that the measure constrains speech or, for that matter, constrains the amplification of speech through social media. As we shall see, such strictures find support in international human rights jurisprudence as well as national constitutional law.
Social media have become a primary platform for authoritarian propaganda and ethnonationalist extremism. Yet, social media generally threaten democracy in ways that are more diffuse than the antidemocratic political movements that were the traditional core concerns of militant democracy. I argue in this Article that militant democracy nevertheless provides a fruitful conceptual framework for countering the threats that social media pose to enduring democratic governance.
Most basically, a militant democracy framework would support democratic countries’ initiatives to induce online platforms to cease the rampant propagation of the types of speech that legacy news media committed to basic journalistic norms of fairness and accuracy would not publish—hate speech, incitement to violence, disinformation, conspiracy theories, hyped-up partisan vitriol, and coordinated personal attacks designed to silence victims through intimidation. Importantly, however, militant democracy principles would not merely target social media content curation and moderation practices that amplify harmful speech. They would also require online platforms affirmatively to give prominence to trustworthy information and fact-based democratic debate. As such, militant democracy stands in sharp contrast to dominant schools of First Amendment jurisprudence that impose significant barriers to government intervention.
That broad militant democracy approach to countering social media harms finds expression in the European Commission’s 2020 European Democracy Action Plan. The Action Plan encompasses several regulatory initiatives for bolstering democratic institutions in the face of authoritarian populists’ and foreign operatives’ exploitation of online platforms. This Article summarizes the Action Plan, with particular focus on the EU Digital Services Act (DSA), adopted in October 2022, and related measures designed to target social media’s subversion of democracy while minimizing restrictions on users’ freedom of expression. As we shall see, the DSA and its related measures present a potentially far-reaching, useful model for combating social media harms to democracy.
Importantly, given the much touted “Brussels Effect,” the European initiatives will likely inform social media practice not just in Europe but also in the United States. Indeed, that trans-Atlantic influence will likely be felt even if neoliberal technology policy and First Amendment strictures prevent U.S. regulators from acting to counter social media harms to democracy. For an online platform to build and maintain different systems and sets of rules in different countries is difficult, expensive, inefficient, and, given communication between users from across the globe, a significant logistical challenge. Hence, even for major platforms, “global compliance is easier and causes less legal or political grief.” In that connection, the European initiatives that we will examine are particularly likely to impact social media practice in the United States given the substantial size of the EU social media market—larger than that of the United States—and the penchant of European courts to order extraterritorial compliance.
My argument proceeds in five Parts. Part I details the principal harms that social media inflict on democratic governance. Part II chronicles the neoliberal technology utopianism and First Amendment models that have dominated U.S. policy toward social media. It also highlights the inadequacy of that approach to meet the serious threats to democracy that social media pose, and it briefly considers how militant democracy might serve as a regulatory ideal for a reimagined First Amendment doctrine. Part III recounts the origins of militant democracy and traces its expression in European and international human rights law. Part IV expounds upon how militant democracy can and should be applied to meet the threats posed by social media, while generally supporting informed citizens’ robust exchange of views in the digital public sphere. In so doing, I critically assess the recent European regulatory initiatives, with a focus on the DSA. In conjunction with other facets of the European Democracy Action Plan, the DSA requires large online platforms to (1) remove illegal antidemocratic speech; (2) assess, report, and mitigate systemic risks arising from the design, function, or use of their platforms to civic discourse, electoral processes, or the exercise of fundamental rights; and (3) account for the fundamental rights of users and others impacted by platform content moderation. I examine each of those requirements in turn. Part V examines the European constitutional framework for militant democracy regulation of social media. The Article then concludes.