The Age of Information Warfare - Social Media’s Grasp on Democracy
Curbing political interference of the judiciary remains an ongoing pursuit, one that is increasingly crucial given the unchecked political power generated by social media. Hindering established U.S. political parties or figures from manipulating or circumventing law’s function now requires lawmakers to deal with the extremism and disinformation outlets such as Facebook and Twitter promote (2021, Barrett). Independent courts are the gatekeepers of liberal democracies and unless the governance of social media is reformed, such courts could be rendered obsolete in the near future.
Social media has revolutionized the dynamics of politics globally, notably concerning extreme populist movements who use the platforms to bypass traditional media outlets for the spreading of disinformation or extremist ideologies. “Authoritarian regimes are now embracing social media, shaping the platforms into a tool to wage war against...opponents. (This) involves the use of...propaganda meant to go viral and to give the impression...that there is a groundswell of organic support for the government (2017, Etter).”
Social media’s functionalities- data collection and exploitation, the use of behaviormonitoring algorithms, and its freedom of speech immunity- enable this rise in political polarization and extremism. Algorithms create “echo chambers (2018, Bail)” by customizing media feed based on the user's tracked search pattern, isolating the user from opposing views whilst shaping his political views and interests (2018, Bail). Regarding freedom of speech, these private entities have no obligation to such a guarantee. “Facebook, Twitter, and other social media platforms are not the government...and therefore, they have no First Amendment obligation to protect your freedom of speech (2020, Strossen).” Platforms are themselves protected under the First Amendment with the freedom of press guarantee protecting them from government censorship while all along having the right to censor as they deem applicable.
This “information warfare” makes social media the captain of global politics. Left unchecked, it holds the power to provoke “declining trust in institutions, scorn for facts, legislative dysfunction...and, in the worst case, real-world violence (2020, Finkel)”. The 2016 U.S.
Presidential campaign, the January 6th insurrection on Capitol Hill, its role in the spread of European Islamist radicalism or Middle Eastern Arab Spring uprisings are just a sample of its effects.
This extreme political climate poses a threat to law neutrality in our democracies. Populist leaders or parties often try to paralyze institutions, such as the Supreme Court, by promoting democracy as popular sovereignty with majority rule potentially diluted by “independent institutions specialized in the protection of fundamental rights (2019, Prendergast).” They often try to consolidate power by calling for constitutional and legal reform, as evidenced by the recent debate on U.S. election fraud. The popular will they claim to represent is usually the only form of legitimate authority accepted, and “such a claim results in states not fully governed by the rule of law (2020, European Commission)”.
This threat trickles down to the legislative branch’s neutrality as well. Social media’s exacerbation of political divisiveness creates strong pressure for elected legislators to act disproportionally in accordance with constituents’ wishes, potentially affecting the balance between the elected official’s duty of “independent thinking and electorate accountability (2019, Prendergast).” In a social-media driven political context where emotions rather than facts shape public opinion , a legislator could be tempted to appease the vivid fervor of his constituents at the expense of acting in the nation’s best interests (2020, EU Science Hub).
The question of whether law is an apolitical device of justice has persisted throughout America's history. The enduring longevity of the U.S. Constitution is in part due to the neutrality stemming from the separation and balance of governmental powers, where the judicial branch serves as a line of defence against unconstitutional acts. This neutrality is embodied in the principle of judicial review, established in 1803’s Marbury v. Madison, and strengthened over time with rulings such as 1973’s Roe v. Wade. While the foundation of judicial review is strong in the United States, certain democracies have only recently introduced this principle; post-WWII Europe, for instance. Such democracies are surely more vulnerable to political pressures on their courts. However, as social media continues to facilitate extreme political influences, the U.S. Supreme Court is exposed. Pressures such as court-packing exist as a means to eliminate its role as the guardian of law neutrality (2018, Kunycky). Europe’s trending rightward political movement has already been affected, where right-wing leaders bothered by “the existence of an institution with the power to annul a majority decision (2018, Kunycky)” adopt authoritarian methods to paralyze courts in the false name of democracy.
Could the United States be faced with such a fate? Could social media’s weaponization of words lead to a certain degree of authoritarianism? Social media needs regulation. In Packingham v. North Carolina, 2017, the U.S. Supreme Court unanimously established, among other findings, that social media was by nature the equivalent of a public forum (2020, Wood). Perhaps the Supreme Court could take this interpretation further by requalifying social media from a private entity to an entity that has taken on certain roles traditionally performed by the state, controlling a public space. Defined as such, this entity could qualify as an exception to the State Action Doctrine which limits the freedom of speech obligation exclusively to Congress and state governments, thus subjugating social media to such a contract (2021, Pinkus). This would be a start in the right direction.
Social media threatens law neutrality and the U.S. constitution as a device for justice risks not only being undermined, or worse, being rendered obsolete. Unless these platforms are regulated, our justice system may not withstand the extreme political pressure exerted upon it. The question of how our world can rely on a neutral mechanism of law must perhaps be restated. In our age, one must ask how democracies around the world can uphold law neutrality in a world where social media dictates public opinion and political impact, playing by a different set of rules than the judicial system it represses.
References
Bail, Christopher A. (2018, September 11). Exposure to opposing views on social media can increase political polarization. https://www.pnas.org/content/115/37/9216
Barrett, Paul (2021, September 27). How Tech Platforms Fuel U.S. Political Polarization and What Government Can Do About It. https://www.brookings.edu/blog/techtank/2021/09/27/how-tech-platforms-fuel-u-s-politicalpolarization-and-what-government-can-do-about-it/
Etter, Lauren (2017, December 21). How Facebook’s Political Unit Enables the Dark Art of Digital Propaganda. Bloomberg. https://www.bloomberg.com/news/features/2017-1221/inside-the-facebook-team-helping-regimes-that-reach-out-and-crack-down
EU Science Hub (2020, October 27). Social media influences our political behaviour and puts pressure on our democracies, new report finds. https://ec.europa.eu/jrc/en/news/social-mediainfluences-our-political-behaviour-and-puts-pressure-our-democracies-new-report-finds
European Commission (2020, December 4). Populist Constitutionalism - The impact on the judiciary and the role of the EU. https://cordis.europa.eu/article/id/428575-populist-leaderschange-the-judiciary-to-increase-power
Finkel, Eli J. (2020, October 30). Political Sectarianism in America. Science. https://www.science.org/doi/10.1126/science.abe1715
Killian, Johnny H (1994). The Constitution of the United States. https://www.senate.gov/civics/constitution_item.
Kunycky, Audrey (2018, October 18). A View from Europe: Courts under political pressure. https://today.law.harvard.edu/courts-under-political-pressure
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
The National Law Review - Volume XI, number 326. (2021, July 16) Seven Famous Supreme Court Cases that Changed the U.S. https://www.natlawreview.com/article/7-famous-supremecourt-cases-changed-us.
Pazzanese, Christina (2021, November 21). How an authoritarian wields social media. The Harvard Gazette. https://news.harvard.edu/gazette/story/2021/11/maria-ressa-warns-ofauthoritarians-social-media-disinformation/
Pinkus, Brett M. (2021, April 21). The Limits of Free Speech in Social Media. https://accessiblelaw.untdallas.edu/limits-free-speech-social-media
Prendergast, David (2019, January 20). The judicial role in protecting democracy from populism. https://www.cambridge.org/core/services/aop-cambridgecore/content/view.pdf/the-judicial-role-in-protecting-democracy-from-populism.pdf
Roe v. Wade, 410 U.S. 113 (1973).
Satariano, Adam (2021, October 6). Facebook Hearing Strengthens Calls for Regulation in Europe. The New York Times. https://www.nytimes.com/2021/10/06/technology/facebookeuropean-union-regulation.html
Strossen, Nadine (2020, February 23). Does the First Amendment Apply to Social Media Companies? https://www.talksonlaw.com/briefs/does-the-first-amendment-require-socialmedia-platforms
Wood, Maria (2020, May 12). Access to Social Media Protected by First Amendment. https://njsbf.org/2020/05/12/access-to-social-media-protected-by-first-amendment/