Akriti Gaur (Yale Law School; Yale Information Society Project) has posted Covert Connection and the First Amendment: The Nexus Between the State and Tech Platforms in an Era of Democratic Backsliding on SSRN. Here is the abstract:
It is well established that social media platforms distort democratic speech by engineering the infrastructure of expression. Historically, states have produced their own distortions through censorship and regulation. In the digital era they have coerced platforms to shape speech conditions. This article argues that the challenge today is neither platform power or state power alone, but the growing alignment between the two. These “twin” sovereigns are entangling to quietly engineer expression in silent and unprecedented ways. This alignment is materially significant for democratic erosion yet procedurally deficient to warrant immediate constitutional scrutiny. Both actors are constitutionally protected.
In this “covert connection” governments do not influence or coerce private technology platforms. Instead, platforms willingly sit on the table to co-create mutually beneficial speech infrastructure. The enmeshment of DOGE employees and Elon Musk in the administration has caused sensitive data leaks and benefited X and other Musk ventures. Palantir’s long-standing cooperation with the government has strengthened the Federal Government’s capabilities to identify and penalize protestors. The Government led TikTok divestment has triggered concerns of mass censorship and foreign platform bias.
In these illustrations, there is no one instance of censorship, content moderation, or pressure but an incremental system of intertwinement, delegation, and gatekeeping. Speech is influenced not only by the business values of a dominant platform but also the underlying ideology of the state. This has urgent implications for individual civil liberties and democracy. This paper analyzes whether the covert connection is constitutionally permissible or even salient.
Against the current allegations of democratic backsliding in the U.S., I provide a descriptive account of recent instances of the covert connection. I then situate it in existing free speech doctrine, and identify its limitations. The First Amendment is traditionally concerned with discrete acts of suppression, overt censorship, and traditional social relationships between private corporations and the executive. Scholars have lamented this anti-censorship preoccupation of the First Amendment and warned of the subtle forms of democratic manipulation employed by the state, specially in the digital era. However, a taxonomy of the covert connection is not as neatly mapped. This phenomenon is not characterized by coercion or fear of restrictive regulation, but by alignment, mutual benefit, and co-dependence.
I argue that the jawboning doctrine under the First Amendment, which may be the most immediate site to contest the covert connection, is too narrow to account for the subtle transformation of speech. Legal scholarship has pointed out the limitations in this context, specially in the aftermath of the Supreme Court’s decision in Murthy v. Missouri. I extend these concerns and outline novel challenges that a formalist jawboning test would encounter.
This Article makes a limited normative claim. State-platform entanglement today does not resemble doctrinally tested instances of indirect censorship or coercion. Yet, the subtle entanglement allows the state and platforms to commit acts which they are not constitutionally permitted to do separately. It is causing doctrinal blindness and warrants judicial scrutiny even if it doesn’t resemble precedent.
Recommended.
Lawrence Solum