Posted by: Ray Brescia | January 11, 2021

Insurrection and the Institutions of Democracy

The 3 Pillars of Depression – Rapid Change Therapies

The institutions of our democracy seem to have held in the face of baseless allegations of electoral fraud and a failed insurrection. What is more, over the last few days, news has broken that a range of social media and other digital platforms have removed President Trump from access to them, and have begun to take similar action against individuals who appear to have supported the coup attempt at the Capitol last week. Dominion Voting Systems has filed a billion dollar lawsuit against lawyer Sydney Powell for defamation for her baseless claims of vote rigging against the company. Congress seems poised to take impeachment action against the President as well, though it is unlikely the process will run its course in the House and Senate prior to Trump leaving office, which does not mean it cannot conclude after President-Elect Biden takes the oath of office. In other words, our institutions appear to be rallying in the face of an unprecedented attack on the foundations of democracy. Whether it is institutions in the private sector, the courts, or Congress, they seem to be working to a certain extent–even if not in concert–to preserve democracy. At the same time, each institutional field, whether it is private social media platforms, the federal and state judiciary, or Congress, will be unable to operate in isolation. Their work must be integrated.

What would such a coordinated, institutional response to preserve democracy and hold those who would undermine it accountable look like? When Congress gets to work after new senators Warnock and Ossoff are seated later in the month it must take a look at the ways in which we can strengthen the ability to ensure our institutions are as robust as possible to fend off what is certain to be further attacks. It should take up reform of Section 230 of the Communications Decency Act so that internet companies can be held responsible for inciting conduct that occurs on their platforms. It should also seek to renew efforts to pass the John Lewis Voting Rights Advancement Act. Both will require some degree of bi-partisan support, and perhaps in the wake of institution-shaking actions of the last few months, stirred on social media, at least some Republicans will see that a path that is paved by deceit, violence, and voter suppression will inevitably undermine further our democratic foundations. Similarly, courts should not hesitate to serve as a field where issues of platform liability can be resolved. While internet business might have finally taken action against incitements to violence, such actions are mostly a function of their private largess–their choice to take such actions. They are still mostly self-regulated. Courts, by serving to adjudicate some of the worst privacy violations, including holding Facebook somewhat accountable for the Cambridge Analytica scandal, at least have played some role in reining in some of the worst conduct carried out on these platforms. Furthermore, legislative bodies should consider punishment for elected officials who participated in or incited the January 6th actions. Bar associations should consider disciplinary action against lawyers who did the same. In other words, while our institutions have largely held so far, they must continue to play a significant role in holding actors accountable for their actions, and shoring up their ability to protect against future, similar efforts. They must also work collaboratively, and not at cross-purposes.

In a paper forthcoming in the Florida State University Law Review, I examine how this sort of collaborative institutional response could play out when it comes to protecting digital privacy. Its core claim is that in order for our institutions to play a critical role in the digital space, a weak approach in one institutional field–the private sector, the public sector (legislators and executives), or the courts–can have negative spillover effects in other sectors. Thus, a consistent and coordinated institutional response is essential to effective policymaking. This analysis is easily applied to methods for preserving the functioning of our democracy. It will require all of our institutions working towards a common goal–that of ensuring our democracy-preserving institutions wherever they may be found are protected, robust, and resilient.


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