In this article, I argue that religious nationalism poses a unique challenge to the liberal theor... more In this article, I argue that religious nationalism poses a unique challenge to the liberal theory of religious freedom. In arguing this, the article first develops and defines an ideal type of religious nationalism through an analysis of Hindu-nationalist and religious Zionist thought. I show that religious nationalism in states like India and Israel have the unique status of intimate rivals. They are intimate since they are able to successfully present themselves as the carriers of the authentic character of the nation-state and utilize modern political tools. As a result, they are free of much of the unifying pressures of state nationalism. And they are rivals because they promote a vision of society and politics that fundamentally challenges the political identity of the state. The paper then turns to the justifications and rationales of religious freedom-both in seminal cases and in political and legal scholarship-and applies them to religious nationalism. It argues that the status of intimate rivalry should, depending on which justification of religious freedom we adhere to, change the way in which we morally and legally understand religious nationalism. First, because religious nationalism is intimate-that is, acceptable and mainstream-it should be approached as a part of the culture of the majority. This implies that we should be less concerned about infringements of religious freedom in the case of the adherents and organizations of religious nationalism. Second, the rivalry of religious nationalism is in itself a good reason for the nation-state not to accommodate it.
The Supreme Court habitually justifies the Establishment Clause as a means to prevent political d... more The Supreme Court habitually justifies the Establishment Clause as a means to prevent political division, protect the civil peace, and forestall citizen alienation. In spite of this popularity among the judiciary, legal scholars have emphatically rejected the political division theory. They state that religion is not especially divisive, and that even if it was, there is no reason to think non-establishment will prevent such political harm. This rejection relies on the misconception that the validity of the political division theory requires that all forms of religion must foment civil strife. This is a mistake. Often, laws apply to a wider category than to the core of what they seek to address. If this is the case, then even if non-establishment comes to merely prevent an especially erosive type of state and religion involvement, it may still be a valid and useful theory. In this Article, I argue that the political division theory is compelling when it is applied to a religion which seeks to collapse the distinction between politics and religion. To achieve this, I portray one such form of establishment of religion: American Christian Nationality, an ideology which sees the United States as having deep religious meaning and promotes Christianity as the central attribute of American identity. This Article will show that the combination between nationality and religion is uniquely divisive because it promotes a religious-based exclusionary understanding of who is a "real" American citizen. Many of the canonical Establishment Clause doctrines seem * Post-Doctoral Global Fellow, NYU Law School. I am deeply grateful to Paul Kahn and Anthony Kronman for countless conversations, insightful feedback, and guidance. This Article benefited greatly from comments and suggestions made by
Social media platforms are facing a legitimation crisis. Without a significant change in their re... more Social media platforms are facing a legitimation crisis. Without a significant change in their relationship with the public, they have reason to fear massive abandonment by users and crippling government regulation. Aware of this threat, platforms have tried to mimic legitimation strategies deployed by older, venerable institutions such as successful corporations, major media outlets, government bureaucracies, and even supreme courts. This is not surprising: New organizations routinely legitimate themselves by mimicking older ones. However, we show that in the case of social media platforms, these strategies are deeply misguided, but for different reasons. The first set of legitimation strategies mimics legal institutions such as bureaucracies and constitutional courts. These attempts fundamentally misunderstand the reason why law is legitimated in modern societies. Platforms seem to think that merely adopting legal symbolism and forms can provide legitimation on its own. However, law in modern societies is legitimated not only through procedural and formal justice, but also because it exists in the context of a state and is perceived as authored by the political community. By stressing the how of law, platforms miss the fundamental question: Why should we allow Mark Zuckerberg, Bytedance, or the Twitter board to possess such incredible power over the digital public sphere? The second set of legitimation strategies focuses on mimicking powerful non-legal organizations such as large tech firms and mass media outlets. These attempts fail in a different way. By echoing the arguments of corporations and civil society organizations, platforms do attempt to provide an answer to why they should exert power over the public sphere. However, these answers are fundamentally flawed: Social media platforms are too public to be fully private and too concerned with profit to be believed to act in the public interest. Thus, social media platforms are currently unable to resolve their legitimation crisis. However, it is unlikely that they are going to disappear: An alternative to a public sphere without legitimate platforms is not a future without platforms but a future with delegitimated, tyrannical ones. We believe that the failures described in this Article reveal that successfully providing a reason as to why platform power is legitimate will require a significant change in the way social media platforms operate, conduct their business, and ultimately conceive of themselves.
Pandemics threaten the health of our bodies and economies. They also threaten the health of our p... more Pandemics threaten the health of our bodies and economies. They also threaten the health of our political and legal institutions. When COVID-19 hit, governments were utterly unprepared to meet the challenge. So were judges. Tasked with adjudicating the constitutionality of unprecedented lockdowns and emergency restrictions, and lacking recent precedents or scholarship to help them reflect, they reacted incoherently and ineffectively. To successfully meet the next, inevitable pandemic we must learn from our current hardships and devise a set of constitutional tools tailored to deal with public health emergencies. We need a pandemic constitution.
To bridge the digital epistemic divide, we must go beyond truthbased solutions and implement poli... more To bridge the digital epistemic divide, we must go beyond truthbased solutions and implement policies to reconstitute societal trust in common epistemic authorities.
The constitutive myth of the Garden of Eden and the Tree of Knowledge is central to the biblical ... more The constitutive myth of the Garden of Eden and the Tree of Knowledge is central to the biblical law. It deals with fundamental normative and legal issues – commandment, prohibition, sin and punishment – combines the main aspects of nomos and narrative, and represents an organizing story upon which the thick normativity of biblical precepts and prohibitions is based. In the paper, we would like to suggest a new interpretation of the myth, according to which the tree of knowledge was an ordinary tree and its fruits were normal fruits. Its uniqueness was constituted only by Divine commandment and prohibition, which were put in place in order to enable Adam and Eve to break the law. Infringing the law and eating from the forbidden fruit was the means by which God taught Adam and Eve the notions of good and evil. In order to fully grasp normativity, it was necessary for Adam and Eve to violate the Divine command at least on one occasion. In this reading, God is not a stringent law-maker...
In this article, I argue that religious nationalism poses a unique challenge to the liberal theor... more In this article, I argue that religious nationalism poses a unique challenge to the liberal theory of religious freedom. In arguing this, the article first develops and defines an ideal type of religious nationalism through an analysis of Hindu-nationalist and religious Zionist thought. I show that religious nationalism in states like India and Israel have the unique status of intimate rivals. They are intimate since they are able to successfully present themselves as the carriers of the authentic character of the nation-state and utilize modern political tools. As a result, they are free of much of the unifying pressures of state nationalism. And they are rivals because they promote a vision of society and politics that fundamentally challenges the political identity of the state. The paper then turns to the justifications and rationales of religious freedom—both in seminal cases and in political and legal scholarship—and applies them to religious nationalism. It argues that the st...
Harvard Journal of Law and Technology Digest, 2023
We are currently faced with a generative artificial intelligence ("AI") dilemma. All jurisdiction... more We are currently faced with a generative artificial intelligence ("AI") dilemma. All jurisdictions must weigh the potential for tremendous economic and scientific progress on the one hand, while on the other, they must consider the very real possibility of severe social and political upheaval. This includes the mass dissemination of misinformation, the perpetuation of bias, the endangering of jobs, and the stoking of fears surrounding an AI apocalypse. The way the great powers of the internetthe United States, the European Union, and Chinachoose to regulate generative AI will undoubtedly seriously impact our lives and politics. China is the first power to move. This Note investigates the People's Republic of China's forthcoming generative AI regulatory measures, which went into effect on August 15, 2023. We contend that this regulation signifies a cautious decision, motivated mainly by internal political reasons, to decelerate the development of generative AI within China. Chinese regulators view this calculated slowdown as a response to the risks of generative AI. China's move to affirmatively regulate generative AI will have global implicationsnotably, its potential ability to mitigate the international "race to the bottom" in generative AI development. This result is not just welcome but a necessary precondition for the responsible advancement of AI. China's choice, inadvertently, serves to grant the rest of the world a much-needed respite for contemplating the regulation of generative AI.
Notre Dame Journal of International & Comparative Law, 2022
Recommendation algorithms, such as those behind social media
feeds and search engine results, ar... more Recommendation algorithms, such as those behind social media feeds and search engine results, are the prism through which we acquire information in our digital age. Critics ascribe many social and political woes—such as the prevalence of misinformation and political division—to the fact that we view our world through the personalized and atomized prism of recommendation artificial intelligence. The way the great powers of the internet—the United States, the European Union, and China—choose to regulate recommendation algorithms will undoubtedly have a serious impact on our lives and political well-being. On December 31, 2021, the Cyberspace Administration of China, a governmental internet watchdog, published a bombshell regulation directed at recommendation algorithms. These regulations, which came into effect in March 2022, exponentially increase the control and autonomy of Chinese netizens over their digital life. At the same time, the regulation will greatly increase the control the Chinese government has over these algorithms. In this timely essay, we analyze the content of the regulation and situate it in its historical and political context.
Social media platforms are facing a legitimation crisis. Without a significant change in their re... more Social media platforms are facing a legitimation crisis. Without a significant change in their relationship with the public, they have reason to fear massive abandonment by users and crippling government regulation. Aware of this threat, platforms have tried to mimic legitimation strategies deployed by older, venerable institutions such as successful corporations, major media outlets, government bureaucracies, and even supreme courts. This is not surprising: New organizations routinely legitimate themselves by mimicking older ones. However, we show that in the case of social media platforms, these strategies are deeply misguided, but for different reasons. The first set of legitimation strategies mimics legal institutions such as bureaucracies and constitutional courts. These attempts fundamentally misunderstand the reason why law is legitimated in modern societies. Platforms seem to think that merely adopting legal symbolism and forms can provide legitimation on its own. However, law in modern societies is legitimated not only through procedural and formal justice, but also because it exists in the context of a state and is perceived as authored by the political community. By stressing the how of law, platforms miss the fundamental question: Why should we allow Mark Zuckerberg, Bytedance, or the Twitter board to possess such incredible power over the digital public sphere? The second set of legitimation strategies focuses on mimicking powerful non-legal organizations such as large tech firms and mass media outlets. These attempts fail in a different way. By echoing the arguments of corporations and civil society organizations, platforms do attempt to provide an answer to why they should exert power over the public sphere. However, these answers are fundamentally flawed: Social media platforms are too public to be fully private and too concerned with profit to be believed to act in the public interest. Thus, social media platforms are currently unable to resolve their legitimation crisis. However, it is unlikely that they are going to disappear: An alternative to a public sphere without legitimate platforms is not a future without platforms but a future with delegitimated, tyrannical ones. We believe that the failures described in this Article reveal that successfully providing a reason as to why platform power is legitimate will require a significant change in the way social media platforms operate, conduct their business, and ultimately conceive of themselves.
The massive fact-checking, flagging, and content removal campaigns run by major digital platforms... more The massive fact-checking, flagging, and content removal campaigns run by major digital platforms during the 2020 elections and the Covid-19 pandemic did some good. However, they failed to prevent substantial portions of the population from believing that the election was stolen or that vaccinations are dangerous.
In this Article, we argue that the reason for the ineffectiveness of truth-based solutions—such as fact-checking— is that they do not reach the heart of the problem. Both scholars and policymakers share the implicit or explicit belief that the rise of digital fake news is harmful mainly because it spreads false information, which lays a rotten groundwork for both individual decisions and collective policy making. While acknowledging the importance of accurate information, we argue that the main problem with fake news is not that it is false. Instead, what is distinctly threatening about digital misinformation is its ability to circumvent and undermine common knowledge-producing institutions including the sciences, courts, medical and other professions, and the media. The fundamental challenge is the fragmentation of our societies into separate epistemic communities. This shakes the factual common ground on which we stand. What does fact-checking matter if twenty percent of the population thinks that the fact-checkers are chronic liars? We call this new reality the Digital Epistemic Divide.
Epistemic fragmentation of society is both more fundamental and more dangerous than the harms of false information as such. It is more fundamental because once a society is epistemically fragmented, the lack of trust in common epistemic authorities will inevitably proliferate disagreement over factual beliefs. It is more dangerous because it can exacerbate political polarization. It is one thing to believe that the other side of a political issue holds wrong values and preferences; it is quite another to believe that they are either constantly lying or deeply manipulated.
To bridge the digital epistemic divide, we must go beyond truth-based solutions and implement policies to reconstitute societal trust in common epistemic authorities.
Pandemics threaten the health of our bodies and economies. They also threaten the health of our p... more Pandemics threaten the health of our bodies and economies. They also threaten the health of our political and legal institutions. When COVID-19 hit, governments worldwide were utterly unprepared to meet the challenge. So were judges. Tasked with adjudicating the constitutionality of unprecedented lockdowns and emergency restrictions, and lacking recent precedents or scholarship to help them reflect, they reacted incoherently and ineffectively. To successfully meet the next, inevitable pandemic, we must learn from our current hardships and devise a set of constitutional tools tailored to deal with public health emergencies. We need a pandemic constitution.
We are living in the midst of a battle over online hate speech regulation, and the stakes could n... more We are living in the midst of a battle over online hate speech regulation, and the stakes could not be higher. Hate speech not only harms its intended victims, be they individuals or groups, but it also polarizes and divides society in ways that undermine the health of democratic regimes. While there is widespread agreement that the current situation of online discourse is untenable, scholars and policymakers are deeply divided on the best way to improve it.
Until recently, American free speech norms have dominated the content moderation policies of digital media platforms. First Amendment norms are extremely resistant to censorship and therefore very protective of offensive and hateful speech. However, in recent years, this influence has been gradually eroded by what could be called European free speech norms, which are significantly more comfortable with directly regulating speech to try to prevent social and political harm. The epitome of the European approach is Germany s Network Enforcement Act (NetzDG), which requires platforms to enforce domestic hate speech laws within that country s borders. This general transformation, and NetzDG especially, have been met by nearly unanimous rebuke by digital free speech scholars, who argue that such measures might steer the platforms into creating a public sphere in which speech is stunted, and the values of free speech are not upheld.
While acknowledging (to some extent, at least) the strength of these critiques, this Article argues that they may well be outweighed by how laws like NetzDG respond effectively to one of the major challenges of the new digital platform public sphere: its detachment from civil society and the public discourse of particular democratic societies. Digital platforms are moderating the digital public sphere from nowhere. This disconnection between the new information gatekeepers (the platforms) and the circumstances and needs of democratic states undermines the social conditions necessary for a healthy democracy. Specifically, the rise of a transnational digital sphere dominated by major digital platforms undermines traditional media gatekeepers capacity to moderate the public debate. Without this guiding hand and without any legal regulation, the public debate quickly devolves, as is evident from the increasingly divisive impact online hate speech has on democratic societies. When tried and true social mechanisms – such as traditional media – are rendered ineffective, it makes sense to counteract the effects of hate speech and stabilize public debate by turning to legal speech regulation such as NetzDG. In at least this sense, we are likely to be better off with an internet influenced by European norms.
In this article, I argue that religious nationalism poses a unique challenge to the liberal theor... more In this article, I argue that religious nationalism poses a unique challenge to the liberal theory of religious freedom. In arguing this, the article first develops and defines an ideal type of religious nationalism through an analysis of Hindu-nationalist and religious Zionist thought. I show that religious nationalism in states like India and Israel have the unique status of intimate rivals. They are intimate since they are able to successfully present themselves as the carriers of the authentic character of the nation-state and utilize modern political tools. As a result, they are free of much of the unifying pressures of state nationalism. And they are rivals because they promote a vision of society and politics that fundamentally challenges the political identity of the state. The paper then turns to the justifications and rationales of religious freedom-both in seminal cases and in political and legal scholarship-and applies them to religious nationalism. It argues that the status of intimate rivalry should, depending on which justification of religious freedom we adhere to, change the way in which we morally and legally understand religious nationalism. First, because religious nationalism is intimate-that is, acceptable and mainstream-it should be approached as a part of the culture of the majority. This implies that we should be less concerned about infringements of religious freedom in the case of the adherents and organizations of religious nationalism. Second, the rivalry of religious nationalism is in itself a good reason for the nation-state not to accommodate it.
The Supreme Court habitually justifies the Establishment Clause as a means to prevent political d... more The Supreme Court habitually justifies the Establishment Clause as a means to prevent political division, protect the civil peace, and forestall citizen alienation. In spite of this popularity among the judiciary, legal scholars have emphatically rejected the political division theory. They state that religion is not especially divisive, and that even if it was, there is no reason to think non-establishment will prevent such political harm. This rejection relies on the misconception that the validity of the political division theory requires that all forms of religion must foment civil strife. This is a mistake. Often, laws apply to a wider category than to the core of what they seek to address. If this is the case, then even if non-establishment comes to merely prevent an especially erosive type of state and religion involvement, it may still be a valid and useful theory. In this Article, I argue that the political division theory is compelling when it is applied to a religion which seeks to collapse the distinction between politics and religion. To achieve this, I portray one such form of establishment of religion: American Christian Nationality, an ideology which sees the United States as having deep religious meaning and promotes Christianity as the central attribute of American identity. This Article will show that the combination between nationality and religion is uniquely divisive because it promotes a religious-based exclusionary understanding of who is a "real" American citizen. Many of the canonical Establishment Clause doctrines seem * Post-Doctoral Global Fellow, NYU Law School. I am deeply grateful to Paul Kahn and Anthony Kronman for countless conversations, insightful feedback, and guidance. This Article benefited greatly from comments and suggestions made by
Social media platforms are facing a legitimation crisis. Without a significant change in their re... more Social media platforms are facing a legitimation crisis. Without a significant change in their relationship with the public, they have reason to fear massive abandonment by users and crippling government regulation. Aware of this threat, platforms have tried to mimic legitimation strategies deployed by older, venerable institutions such as successful corporations, major media outlets, government bureaucracies, and even supreme courts. This is not surprising: New organizations routinely legitimate themselves by mimicking older ones. However, we show that in the case of social media platforms, these strategies are deeply misguided, but for different reasons. The first set of legitimation strategies mimics legal institutions such as bureaucracies and constitutional courts. These attempts fundamentally misunderstand the reason why law is legitimated in modern societies. Platforms seem to think that merely adopting legal symbolism and forms can provide legitimation on its own. However, law in modern societies is legitimated not only through procedural and formal justice, but also because it exists in the context of a state and is perceived as authored by the political community. By stressing the how of law, platforms miss the fundamental question: Why should we allow Mark Zuckerberg, Bytedance, or the Twitter board to possess such incredible power over the digital public sphere? The second set of legitimation strategies focuses on mimicking powerful non-legal organizations such as large tech firms and mass media outlets. These attempts fail in a different way. By echoing the arguments of corporations and civil society organizations, platforms do attempt to provide an answer to why they should exert power over the public sphere. However, these answers are fundamentally flawed: Social media platforms are too public to be fully private and too concerned with profit to be believed to act in the public interest. Thus, social media platforms are currently unable to resolve their legitimation crisis. However, it is unlikely that they are going to disappear: An alternative to a public sphere without legitimate platforms is not a future without platforms but a future with delegitimated, tyrannical ones. We believe that the failures described in this Article reveal that successfully providing a reason as to why platform power is legitimate will require a significant change in the way social media platforms operate, conduct their business, and ultimately conceive of themselves.
Pandemics threaten the health of our bodies and economies. They also threaten the health of our p... more Pandemics threaten the health of our bodies and economies. They also threaten the health of our political and legal institutions. When COVID-19 hit, governments were utterly unprepared to meet the challenge. So were judges. Tasked with adjudicating the constitutionality of unprecedented lockdowns and emergency restrictions, and lacking recent precedents or scholarship to help them reflect, they reacted incoherently and ineffectively. To successfully meet the next, inevitable pandemic we must learn from our current hardships and devise a set of constitutional tools tailored to deal with public health emergencies. We need a pandemic constitution.
To bridge the digital epistemic divide, we must go beyond truthbased solutions and implement poli... more To bridge the digital epistemic divide, we must go beyond truthbased solutions and implement policies to reconstitute societal trust in common epistemic authorities.
The constitutive myth of the Garden of Eden and the Tree of Knowledge is central to the biblical ... more The constitutive myth of the Garden of Eden and the Tree of Knowledge is central to the biblical law. It deals with fundamental normative and legal issues – commandment, prohibition, sin and punishment – combines the main aspects of nomos and narrative, and represents an organizing story upon which the thick normativity of biblical precepts and prohibitions is based. In the paper, we would like to suggest a new interpretation of the myth, according to which the tree of knowledge was an ordinary tree and its fruits were normal fruits. Its uniqueness was constituted only by Divine commandment and prohibition, which were put in place in order to enable Adam and Eve to break the law. Infringing the law and eating from the forbidden fruit was the means by which God taught Adam and Eve the notions of good and evil. In order to fully grasp normativity, it was necessary for Adam and Eve to violate the Divine command at least on one occasion. In this reading, God is not a stringent law-maker...
In this article, I argue that religious nationalism poses a unique challenge to the liberal theor... more In this article, I argue that religious nationalism poses a unique challenge to the liberal theory of religious freedom. In arguing this, the article first develops and defines an ideal type of religious nationalism through an analysis of Hindu-nationalist and religious Zionist thought. I show that religious nationalism in states like India and Israel have the unique status of intimate rivals. They are intimate since they are able to successfully present themselves as the carriers of the authentic character of the nation-state and utilize modern political tools. As a result, they are free of much of the unifying pressures of state nationalism. And they are rivals because they promote a vision of society and politics that fundamentally challenges the political identity of the state. The paper then turns to the justifications and rationales of religious freedom—both in seminal cases and in political and legal scholarship—and applies them to religious nationalism. It argues that the st...
Harvard Journal of Law and Technology Digest, 2023
We are currently faced with a generative artificial intelligence ("AI") dilemma. All jurisdiction... more We are currently faced with a generative artificial intelligence ("AI") dilemma. All jurisdictions must weigh the potential for tremendous economic and scientific progress on the one hand, while on the other, they must consider the very real possibility of severe social and political upheaval. This includes the mass dissemination of misinformation, the perpetuation of bias, the endangering of jobs, and the stoking of fears surrounding an AI apocalypse. The way the great powers of the internetthe United States, the European Union, and Chinachoose to regulate generative AI will undoubtedly seriously impact our lives and politics. China is the first power to move. This Note investigates the People's Republic of China's forthcoming generative AI regulatory measures, which went into effect on August 15, 2023. We contend that this regulation signifies a cautious decision, motivated mainly by internal political reasons, to decelerate the development of generative AI within China. Chinese regulators view this calculated slowdown as a response to the risks of generative AI. China's move to affirmatively regulate generative AI will have global implicationsnotably, its potential ability to mitigate the international "race to the bottom" in generative AI development. This result is not just welcome but a necessary precondition for the responsible advancement of AI. China's choice, inadvertently, serves to grant the rest of the world a much-needed respite for contemplating the regulation of generative AI.
Notre Dame Journal of International & Comparative Law, 2022
Recommendation algorithms, such as those behind social media
feeds and search engine results, ar... more Recommendation algorithms, such as those behind social media feeds and search engine results, are the prism through which we acquire information in our digital age. Critics ascribe many social and political woes—such as the prevalence of misinformation and political division—to the fact that we view our world through the personalized and atomized prism of recommendation artificial intelligence. The way the great powers of the internet—the United States, the European Union, and China—choose to regulate recommendation algorithms will undoubtedly have a serious impact on our lives and political well-being. On December 31, 2021, the Cyberspace Administration of China, a governmental internet watchdog, published a bombshell regulation directed at recommendation algorithms. These regulations, which came into effect in March 2022, exponentially increase the control and autonomy of Chinese netizens over their digital life. At the same time, the regulation will greatly increase the control the Chinese government has over these algorithms. In this timely essay, we analyze the content of the regulation and situate it in its historical and political context.
Social media platforms are facing a legitimation crisis. Without a significant change in their re... more Social media platforms are facing a legitimation crisis. Without a significant change in their relationship with the public, they have reason to fear massive abandonment by users and crippling government regulation. Aware of this threat, platforms have tried to mimic legitimation strategies deployed by older, venerable institutions such as successful corporations, major media outlets, government bureaucracies, and even supreme courts. This is not surprising: New organizations routinely legitimate themselves by mimicking older ones. However, we show that in the case of social media platforms, these strategies are deeply misguided, but for different reasons. The first set of legitimation strategies mimics legal institutions such as bureaucracies and constitutional courts. These attempts fundamentally misunderstand the reason why law is legitimated in modern societies. Platforms seem to think that merely adopting legal symbolism and forms can provide legitimation on its own. However, law in modern societies is legitimated not only through procedural and formal justice, but also because it exists in the context of a state and is perceived as authored by the political community. By stressing the how of law, platforms miss the fundamental question: Why should we allow Mark Zuckerberg, Bytedance, or the Twitter board to possess such incredible power over the digital public sphere? The second set of legitimation strategies focuses on mimicking powerful non-legal organizations such as large tech firms and mass media outlets. These attempts fail in a different way. By echoing the arguments of corporations and civil society organizations, platforms do attempt to provide an answer to why they should exert power over the public sphere. However, these answers are fundamentally flawed: Social media platforms are too public to be fully private and too concerned with profit to be believed to act in the public interest. Thus, social media platforms are currently unable to resolve their legitimation crisis. However, it is unlikely that they are going to disappear: An alternative to a public sphere without legitimate platforms is not a future without platforms but a future with delegitimated, tyrannical ones. We believe that the failures described in this Article reveal that successfully providing a reason as to why platform power is legitimate will require a significant change in the way social media platforms operate, conduct their business, and ultimately conceive of themselves.
The massive fact-checking, flagging, and content removal campaigns run by major digital platforms... more The massive fact-checking, flagging, and content removal campaigns run by major digital platforms during the 2020 elections and the Covid-19 pandemic did some good. However, they failed to prevent substantial portions of the population from believing that the election was stolen or that vaccinations are dangerous.
In this Article, we argue that the reason for the ineffectiveness of truth-based solutions—such as fact-checking— is that they do not reach the heart of the problem. Both scholars and policymakers share the implicit or explicit belief that the rise of digital fake news is harmful mainly because it spreads false information, which lays a rotten groundwork for both individual decisions and collective policy making. While acknowledging the importance of accurate information, we argue that the main problem with fake news is not that it is false. Instead, what is distinctly threatening about digital misinformation is its ability to circumvent and undermine common knowledge-producing institutions including the sciences, courts, medical and other professions, and the media. The fundamental challenge is the fragmentation of our societies into separate epistemic communities. This shakes the factual common ground on which we stand. What does fact-checking matter if twenty percent of the population thinks that the fact-checkers are chronic liars? We call this new reality the Digital Epistemic Divide.
Epistemic fragmentation of society is both more fundamental and more dangerous than the harms of false information as such. It is more fundamental because once a society is epistemically fragmented, the lack of trust in common epistemic authorities will inevitably proliferate disagreement over factual beliefs. It is more dangerous because it can exacerbate political polarization. It is one thing to believe that the other side of a political issue holds wrong values and preferences; it is quite another to believe that they are either constantly lying or deeply manipulated.
To bridge the digital epistemic divide, we must go beyond truth-based solutions and implement policies to reconstitute societal trust in common epistemic authorities.
Pandemics threaten the health of our bodies and economies. They also threaten the health of our p... more Pandemics threaten the health of our bodies and economies. They also threaten the health of our political and legal institutions. When COVID-19 hit, governments worldwide were utterly unprepared to meet the challenge. So were judges. Tasked with adjudicating the constitutionality of unprecedented lockdowns and emergency restrictions, and lacking recent precedents or scholarship to help them reflect, they reacted incoherently and ineffectively. To successfully meet the next, inevitable pandemic, we must learn from our current hardships and devise a set of constitutional tools tailored to deal with public health emergencies. We need a pandemic constitution.
We are living in the midst of a battle over online hate speech regulation, and the stakes could n... more We are living in the midst of a battle over online hate speech regulation, and the stakes could not be higher. Hate speech not only harms its intended victims, be they individuals or groups, but it also polarizes and divides society in ways that undermine the health of democratic regimes. While there is widespread agreement that the current situation of online discourse is untenable, scholars and policymakers are deeply divided on the best way to improve it.
Until recently, American free speech norms have dominated the content moderation policies of digital media platforms. First Amendment norms are extremely resistant to censorship and therefore very protective of offensive and hateful speech. However, in recent years, this influence has been gradually eroded by what could be called European free speech norms, which are significantly more comfortable with directly regulating speech to try to prevent social and political harm. The epitome of the European approach is Germany s Network Enforcement Act (NetzDG), which requires platforms to enforce domestic hate speech laws within that country s borders. This general transformation, and NetzDG especially, have been met by nearly unanimous rebuke by digital free speech scholars, who argue that such measures might steer the platforms into creating a public sphere in which speech is stunted, and the values of free speech are not upheld.
While acknowledging (to some extent, at least) the strength of these critiques, this Article argues that they may well be outweighed by how laws like NetzDG respond effectively to one of the major challenges of the new digital platform public sphere: its detachment from civil society and the public discourse of particular democratic societies. Digital platforms are moderating the digital public sphere from nowhere. This disconnection between the new information gatekeepers (the platforms) and the circumstances and needs of democratic states undermines the social conditions necessary for a healthy democracy. Specifically, the rise of a transnational digital sphere dominated by major digital platforms undermines traditional media gatekeepers capacity to moderate the public debate. Without this guiding hand and without any legal regulation, the public debate quickly devolves, as is evident from the increasingly divisive impact online hate speech has on democratic societies. When tried and true social mechanisms – such as traditional media – are rendered ineffective, it makes sense to counteract the effects of hate speech and stabilize public debate by turning to legal speech regulation such as NetzDG. In at least this sense, we are likely to be better off with an internet influenced by European norms.
Uploads
Papers by Gilad Abiri
feeds and search engine results, are the prism through which we acquire
information in our digital age. Critics ascribe many social and political
woes—such as the prevalence of misinformation and political
division—to the fact that we view our world through the personalized
and atomized prism of recommendation artificial intelligence. The way
the great powers of the internet—the United States, the European
Union, and China—choose to regulate recommendation algorithms will
undoubtedly have a serious impact on our lives and political well-being.
On December 31, 2021, the Cyberspace Administration of China,
a governmental internet watchdog, published a bombshell regulation
directed at recommendation algorithms. These regulations, which came
into effect in March 2022, exponentially increase the control and
autonomy of Chinese netizens over their digital life. At the same time,
the regulation will greatly increase the control the Chinese government
has over these algorithms. In this timely essay, we analyze the content
of the regulation and situate it in its historical and political context.
The first set of legitimation strategies mimics legal institutions such as bureaucracies and constitutional courts. These attempts fundamentally misunderstand the reason why law is legitimated in modern societies. Platforms seem to think that merely adopting legal symbolism and forms can provide legitimation on its own. However, law in modern societies is legitimated not only through procedural and formal justice, but also because it exists in the context of a state and is perceived as authored by the political community. By stressing the how of law, platforms miss the fundamental question: Why should we allow Mark Zuckerberg, Bytedance, or the Twitter board to possess such incredible power over the digital public sphere?
The second set of legitimation strategies focuses on mimicking powerful non-legal organizations such as large tech firms and mass media outlets. These attempts fail in a different way. By echoing the arguments of corporations and civil society organizations, platforms do attempt to provide an answer to why they should exert power over the public sphere. However, these answers are fundamentally flawed: Social media platforms are too public to be fully private and too concerned with profit to be believed to act in the public interest.
Thus, social media platforms are currently unable to resolve their legitimation crisis. However, it is unlikely that they are going to disappear: An alternative to a public sphere without legitimate platforms is not a future without platforms but a future with delegitimated, tyrannical ones. We believe that the failures described in this Article reveal that successfully providing a reason as to why platform power is legitimate will require a significant change in the way social media platforms operate, conduct their
business, and ultimately conceive of themselves.
In this Article, we argue that the reason for the ineffectiveness of truth-based solutions—such as fact-checking— is that they do not reach the heart of the problem. Both scholars and policymakers share the implicit or explicit belief that the rise of digital fake news is harmful mainly because it spreads false information, which lays a rotten groundwork for both individual decisions and collective policy making. While acknowledging the importance of accurate information, we argue that the main problem with fake news is not that it is false. Instead, what is distinctly threatening about digital misinformation is its ability to circumvent and undermine common knowledge-producing institutions including the sciences, courts, medical and other professions, and the media. The fundamental challenge is the fragmentation of our societies into separate epistemic communities. This shakes the factual common ground on which we stand. What does fact-checking matter if twenty percent of the population thinks that the fact-checkers are chronic liars? We call this new reality the Digital Epistemic Divide.
Epistemic fragmentation of society is both more fundamental and more dangerous than the harms of false information as such. It is more fundamental because once a society is epistemically fragmented, the lack of trust in common epistemic authorities will inevitably proliferate disagreement over factual beliefs. It is more dangerous because it can exacerbate political polarization. It is one thing to believe that the other side of a political issue holds wrong values and preferences; it is quite another to believe that they are either constantly lying or deeply manipulated.
To bridge the digital epistemic divide, we must go beyond truth-based solutions and implement policies to reconstitute societal trust in common epistemic authorities.
Until recently, American free speech norms have dominated the content moderation policies of digital media platforms. First Amendment norms are extremely resistant to censorship and therefore very protective of offensive and hateful speech. However, in recent years, this influence has been gradually eroded by what could be called European free speech norms, which are significantly more comfortable with directly regulating speech to try to prevent social and political harm. The epitome of the European approach is Germany s Network Enforcement Act (NetzDG), which requires platforms to enforce domestic hate speech laws within that country s borders. This general transformation, and NetzDG especially, have been met by nearly unanimous rebuke by digital free speech scholars, who argue that such measures might steer the platforms into creating a public sphere in which speech is stunted, and the values of free speech are not upheld.
While acknowledging (to some extent, at least) the strength of these critiques, this Article argues that they may well be outweighed by how laws like NetzDG respond effectively to one of the major challenges of the new digital platform public sphere: its detachment from civil society and the public discourse of particular democratic societies. Digital platforms are moderating the digital public sphere from nowhere. This disconnection between the new information gatekeepers (the platforms) and the circumstances and needs of democratic states undermines the social conditions necessary for a healthy democracy. Specifically, the rise of a transnational digital sphere dominated by major digital platforms undermines traditional media gatekeepers capacity to moderate the public debate. Without this guiding hand and without any legal regulation, the public debate quickly devolves, as is evident from the increasingly divisive impact online hate speech has on democratic societies. When tried and true social mechanisms – such as traditional media – are rendered ineffective, it makes sense to counteract the effects of hate speech and stabilize public debate by turning to legal speech regulation such as NetzDG. In at least this sense, we are likely to be better off with an internet influenced by European norms.
feeds and search engine results, are the prism through which we acquire
information in our digital age. Critics ascribe many social and political
woes—such as the prevalence of misinformation and political
division—to the fact that we view our world through the personalized
and atomized prism of recommendation artificial intelligence. The way
the great powers of the internet—the United States, the European
Union, and China—choose to regulate recommendation algorithms will
undoubtedly have a serious impact on our lives and political well-being.
On December 31, 2021, the Cyberspace Administration of China,
a governmental internet watchdog, published a bombshell regulation
directed at recommendation algorithms. These regulations, which came
into effect in March 2022, exponentially increase the control and
autonomy of Chinese netizens over their digital life. At the same time,
the regulation will greatly increase the control the Chinese government
has over these algorithms. In this timely essay, we analyze the content
of the regulation and situate it in its historical and political context.
The first set of legitimation strategies mimics legal institutions such as bureaucracies and constitutional courts. These attempts fundamentally misunderstand the reason why law is legitimated in modern societies. Platforms seem to think that merely adopting legal symbolism and forms can provide legitimation on its own. However, law in modern societies is legitimated not only through procedural and formal justice, but also because it exists in the context of a state and is perceived as authored by the political community. By stressing the how of law, platforms miss the fundamental question: Why should we allow Mark Zuckerberg, Bytedance, or the Twitter board to possess such incredible power over the digital public sphere?
The second set of legitimation strategies focuses on mimicking powerful non-legal organizations such as large tech firms and mass media outlets. These attempts fail in a different way. By echoing the arguments of corporations and civil society organizations, platforms do attempt to provide an answer to why they should exert power over the public sphere. However, these answers are fundamentally flawed: Social media platforms are too public to be fully private and too concerned with profit to be believed to act in the public interest.
Thus, social media platforms are currently unable to resolve their legitimation crisis. However, it is unlikely that they are going to disappear: An alternative to a public sphere without legitimate platforms is not a future without platforms but a future with delegitimated, tyrannical ones. We believe that the failures described in this Article reveal that successfully providing a reason as to why platform power is legitimate will require a significant change in the way social media platforms operate, conduct their
business, and ultimately conceive of themselves.
In this Article, we argue that the reason for the ineffectiveness of truth-based solutions—such as fact-checking— is that they do not reach the heart of the problem. Both scholars and policymakers share the implicit or explicit belief that the rise of digital fake news is harmful mainly because it spreads false information, which lays a rotten groundwork for both individual decisions and collective policy making. While acknowledging the importance of accurate information, we argue that the main problem with fake news is not that it is false. Instead, what is distinctly threatening about digital misinformation is its ability to circumvent and undermine common knowledge-producing institutions including the sciences, courts, medical and other professions, and the media. The fundamental challenge is the fragmentation of our societies into separate epistemic communities. This shakes the factual common ground on which we stand. What does fact-checking matter if twenty percent of the population thinks that the fact-checkers are chronic liars? We call this new reality the Digital Epistemic Divide.
Epistemic fragmentation of society is both more fundamental and more dangerous than the harms of false information as such. It is more fundamental because once a society is epistemically fragmented, the lack of trust in common epistemic authorities will inevitably proliferate disagreement over factual beliefs. It is more dangerous because it can exacerbate political polarization. It is one thing to believe that the other side of a political issue holds wrong values and preferences; it is quite another to believe that they are either constantly lying or deeply manipulated.
To bridge the digital epistemic divide, we must go beyond truth-based solutions and implement policies to reconstitute societal trust in common epistemic authorities.
Until recently, American free speech norms have dominated the content moderation policies of digital media platforms. First Amendment norms are extremely resistant to censorship and therefore very protective of offensive and hateful speech. However, in recent years, this influence has been gradually eroded by what could be called European free speech norms, which are significantly more comfortable with directly regulating speech to try to prevent social and political harm. The epitome of the European approach is Germany s Network Enforcement Act (NetzDG), which requires platforms to enforce domestic hate speech laws within that country s borders. This general transformation, and NetzDG especially, have been met by nearly unanimous rebuke by digital free speech scholars, who argue that such measures might steer the platforms into creating a public sphere in which speech is stunted, and the values of free speech are not upheld.
While acknowledging (to some extent, at least) the strength of these critiques, this Article argues that they may well be outweighed by how laws like NetzDG respond effectively to one of the major challenges of the new digital platform public sphere: its detachment from civil society and the public discourse of particular democratic societies. Digital platforms are moderating the digital public sphere from nowhere. This disconnection between the new information gatekeepers (the platforms) and the circumstances and needs of democratic states undermines the social conditions necessary for a healthy democracy. Specifically, the rise of a transnational digital sphere dominated by major digital platforms undermines traditional media gatekeepers capacity to moderate the public debate. Without this guiding hand and without any legal regulation, the public debate quickly devolves, as is evident from the increasingly divisive impact online hate speech has on democratic societies. When tried and true social mechanisms – such as traditional media – are rendered ineffective, it makes sense to counteract the effects of hate speech and stabilize public debate by turning to legal speech regulation such as NetzDG. In at least this sense, we are likely to be better off with an internet influenced by European norms.