2020 Essays

How to Regulate (and Not Regulate) Social Media

Balkin, Jack

"To understand how to regulate social media, you have to understand why you want to regulate it. I will say something about specific regulatory proposals in the last part of this essay. But I want to spend most of my time discussing the why as much as the how.

Here is the central idea: Social media companies are key institutions in the 21st century digital public sphere. A public sphere doesn’t work properly without trusted and trustworthy institutions guided by professional and public-regarding norms. The goal of regulating social media is to create incentives for social media companies to be responsible and trustworthy institutions that will help foster a healthy and vibrant digital public sphere.

What is the public sphere? For purposes of this essay, we can say that the public sphere is the space in which people express opinions and exchange views that judge what is going on in society. Put another way, the public sphere is a set of social practices and institutions in which ideas and opinions circulate. The public sphere is obviously crucial to democracy. But most people’s opinions aren’t about government policy. They are about sports, culture, fashion, gossip, commerce, and so on.

A public sphere is more than just people sitting around talking. It is shaped and governed, and made functional or dysfunctional, rich or poor, by institutions. Most of the institutions that constitute the public sphere are private. They sit between the public and the government. There are lots of examples in the pre-digital world: print and broadcast media, book clubs, spaces for assembly and conversation, sports stadiums, theaters, schools, universities, churches, libraries, archives, museums, and so on.

A digital public sphere is a public sphere that is dominated by digital media and digital technologies. Digital media become the key institutions that either maintain or undermine the health of the public sphere."