Countervailing Platform Power

Abstract

Platforms have too much power over social media. Yet the two opposing paths to reform misdiagnose the problem and pose a dilemma. Eliminate platform power (Texas’ approach, at display in Moody) and jeopardize user speech, or resign to platform rule and seek to improve it (the EU’s influential approach).

To thread through this dilemma, we can learn from the structural constitution—and conquer power by dividing it. Answer platform power, this Article argues, by building collective user power. It calls for using regulatory subsidies to redistribute, to user communities, authority now enjoyed by companies. The Article shows that countervailing power is key to understanding that the First Amendment is not categorically anti-redistributive. Instead, properly understood, it scrutinizes redistribution to preserve the independence of public opinion— the people’s “censorial power”, which the First Amendment itself counters against government power.

As a prototype of countervailing platform power, this Article offers federalism. Governance is split into platform-wide (“federal”) and community (“state”) tiers. User communities gain primary authority over content policies and amplification priorities, as well as interface design. Platforms keep limited, enumerated powers over system-wide concerns and specified violations. A platform compact achieved through collective bargaining between users and platforms sets the boundaries. The resulting framework allows for lawful-content limitations legitimate as expressions of user deliberation, while addressing dangerous and toxic renegade communities. The model is not a silver bullet for content moderation, but it allows decisions to be made without concentrated political power in the hands of a few company executives.