REPRESENTATION WITHOUT ELECTIONS: CIVIL SOCIETY PARTICIPATION AS A REMEDY FOR THE DEMOCRATIC DEFICITS OF ONLINE SPEECH GOVERNANCE

Giant social media companies wield oversized power over what gets communicated online. Yet, it remains unclear how to hold that power accountable to the public. In democracies, governments are limited in how much they can regulate speech directly, creating an obstacle for efforts to make online speech governance more democratic. Corporations are touting civil society consultations to try to regain trust in how they write their rules. Scholars and lawmakers, too, are looking to mandate increased reliance on civil society participation as a means to democratize private governance without involving governmental bodies. These proposals often make two assumptions. The first is that civil society participation operates outside the law, within the space that the First Amendment and Section 230 of the Communication Decency Act have carved out from the reach of courts and legislatures. The other is that if diverse civil society actors are involved, they will bring diverse viewpoints to bear in the shaping of policy outcomes. Drawing on over sixty original interviews with civil society actors and company representatives, this Article shows that both prevailing assumptions about civil society participation in content moderation are wrong. First, the governance of online speech has been anything but lawless. Law has played a major role in constituting companies' and civil society's interests. Not only have advocates gravitated towards the legal frameworks that advance their interests, but available legal texts have constrained and expanded their imagination to formulate normative demands. Second, civil society participation has had distributive effects among advocacy groups. Those who favor more restrictive online speech rules have been more effective advocates in the last few years than those who believe that restrictions on speech undermine freedom of expression. This Article casts doubt on the claim that this trend responds to a shift in social preferences over how to regulate freedom of expression. The analysis suggests instead that advocates interested in advancing more aggressive speech regulations have been more successful than their counterparts at mobilizing legal discourses and solidifying a lobbying agenda. The Article concludes with proposals to adjust and strengthen civil society participation as a democratizing tool.