The decision of multiple platforms to exclude Donald Trump from their services marks a turning point in the present of democracy that we still do not fully understand. A handful of private companies, only accountable to their shareholders and users, decided that the outgoing president of a democratic country should be effectively excluded from public debate, or at least in one of its main forms - the closest, horizontal and direct.

That decision hides a series of problems and challenges, which this brief comment proposes to expose.

The first is that there is no doubt that the decision is justified by US law, which is the law applicable to companies founded, created and based in that country. There are two legal sources that protect the decision of the companies. First, the First Amendment to the Constitution, which assures them individually the right to decide what to publish and what not. They offer a private service, and they decide with almost absolute freedom that the First Amendment proclaims who to serve and who not. By law, any of these platforms has the same rights as a small pamphleteer with a mimeographer in a garage: he decides what to publish and what not to publish and nobody can tell him anything about it. The second source is section 230 of the Communications Decency Act of 1996, which also frees Internet intermediaries from responsibility for content uploaded by third parties without their intervention, under certain conditions. This regulation was specially designed for the horizontal communication ecosystem that emerged with the Internet, and in some way his 26 words shaped the Internet we have today. All hosting and content publishing services are protected by this rule.

The current law is not enough, however, to understand the problem. It is traversed by practices, expectations, and deep disagreements about what public debate should be and about the roles that shape it in the public debate. wild new world of the world Wide Web. A complete mapping of these streams is difficult to trace, but should include at least the following components.

  • There is a duopoly of mobile platforms and an oligopoly of cloud services that, for market reasons, wield enormous power that largely determines what the Internet is for the majority of users. This concentration of power occurred under the dismissive gaze of regulatory authorities around the world, but the main problem was - of course - in the US, the country with the most firepower in the matter. The "network effects" of companies that are dedicated to connecting people who do not know each other tend to concentration. Without decisive state action it is difficult, if not impossible, to combat these trends.
  • The power of these large platforms made them the object of pressure from states around the world, who always have the possibility of threatening - with varying degrees of seriousness - with anti-monopoly regulations that oblige, for example, to disaggregate horizontally or vertically integrated businesses. This made the platforms especially attentive to the demands of politicians around the world. With a carefully constructed discourse of collaboration, they deployed —- around the world —- armies of lawyers and lobbyists willing to take the opinions of the most diverse state actors to design their own policies and respond to those demands. These are, moreover, multiple: they went from banning profanity a few years ago to dealing with “hate speech” recently. The pressures are crossed: left and right ask the platforms for different things and they try, as far as possible, to respond to all.
  • Where those pressures become urgent, however, is in two cities: Washington and Brussels. (The platforms have long yielded to Beijing's wishes.) Both centers of power have the regulatory firepower that peripheral countries lack. The pressures generated there - in the form of threats to regulation, projects or effective regulations - tend to have effects. In this sense, the suspension of Trump's accounts in the main social networks of the world account for the peculiar political scenario of Washington's winter: an outgoing president unleashed, who violated all the democratic conventions of transitions, who fed the wildest theories conspiracies about the outcome of the 2020 elections and that he eventually lost power. The January 6 demonstration sought to generate a scenario of pressure on a Congress that was about to validate the result of the electoral process - the last time that the conspiratorial ravings of Trumpism could do something related to the electoral process that removes Trump from the House Blanca and returns him to his tower in Manhattan.
  1. The suspension of social media accounts was followed by other similar actions—-deplatforming And what Onna Hattaway and Scott Shapiro call outcast--the deprivation of “membership benefits” to disobedient individuals. Payment services that refuse to provide services and even banks that refuse to keep those designated as customers. All this that seems new has, in reality and like everything, diverse and millennial antecedents: civil death, exile and ostracism are some of the old forms that ironically tend to reappear under new clothes in uncertain moments. Trump's ostracism, which is reached after a certain escalation in moderation of its contents as his status as outsider anti-system (!) was emerging as more and more dangerous, it presents a series of challenges on various issues important to democracy and freedom of expression, and their conditions of possibility, in the immediate future. Among those challenges, I would mention the following: a. Freedom of expression. Current law and the First Amendment of the United States protect what platforms and intermediaries did. But for various reasons - dominant position, cross pressures, demands from users and regulatory actors - private platforms seek to base this type of decision on convincing public reasons, not simply on arguments of authority based on the First Amendment. Thus, in recent years they have developed increasingly complex terms and conditions and “community guides”, in languages ​​that attempt to imitate the “rights” discourse typical of constitutional law. This world, that the CELE's Little Letter project and Green Lantern seeks to illuminate, is incredibly changeable and constitutes the partially self-imposed regulatory framework that effectively seeks to control the decisions of the platforms. However, the fact that these companies have opted for this claim of public reasons suggests that —- actually —- they are true public forums where their decisions are not, or should not be, completely autonomous. This is a somewhat old category of US constitutional law that would limit the power of platforms to exclude based actors. in your point of view—- an elegant way, perhaps, to achieve effective state regulation of these spaces. Efficient regulation. Even if by judicial or regulatory means the constitutional law of the United States reaches that conclusion, the problem would not be solved. This is due to the following: that right is very different to the law of many other western countries, where speech is more restricted and the balance between freedom of expression and other rights (eg, honor) is different. A solution US constitutional law it would not be enough to appease all the complaints, unless US constitutional law changes along the way. These differences are profound, but there is a particularly controversial point: the racist, misogynistic, nationalist discourses, which fall into the somewhat diffuse category of “hate speech”, which for many it is not freedom of expression, but for many others yes. This disagreement is there, in the future, waiting for us when we find an efficient regulatory mechanism.

    c. The failure of the sovereign model. Finding an efficient regulatory mechanism does not only mean agreeing on the content that the rules should have, but the mechanism that would allow them to be created. And it is a somewhat innocent mistake to believe that the problem is that the state is not present or does not act, the problem is much more serious: the regulation of multinational companies that offer remote services and that generally do not have a legal presence in the countries in which they provide services cannot be based on the sovereign paradigm of democratically elected legislative powers. I was tempted to argue that it is a sold out model, but it never really worked for the Internet and it is clumsy to insist that the future of regulation will come from that side. The future of course it is not written but perhaps it resembles the hybrid models of controlled self-regulation or co-regulation that Marsden et al. recently described.

    d. Polarization. Finally, there is an even more serious problem than that linked to disagreements over hate speech or the finding of an efficient legal regulatory mechanism: the growing political polarization of societies distressingly crossed by divisions that prevent some from talking to others. This phenomenon is not recent, but it is behind the current “crisis” that many Western democracies seem to be going through. The problem far exceeds the question of social media, but decisions like the deplatforming of actors perceived as "losers" at that crossroads are going to have an effect, for now uncertain, on that problem. It's hard to imagine how that doesn't exacerbate, rather than help solve, those problems.