Monday, January 18, 2021

Birgit Spiesshofer: "Twitter & Trump - the spirits I called forth?" -- English Translation of Article published first (in German) in the Frankfurter Allgemeine Magazine Einspruch! (online) 16 January 2021


Dr. Birgit Spiesshofer has been undertaking truly important and path-breaking work in the area of the responsibility of business for harms that may be attached (that, of course, is the issue of the moment, that is the jurisprudence of "attachment") to the economic activities of enterprises and persons.  Her  monograph, Responsible Enterprise: The Emergence of a Global Economic Order (Munich: CH Beck, Oxford, Hart, 2018), is a remarkable analysis of the "state of the legal art" in this field and an excellent basis for thinking about the paths already being carved out for going forward (for my review of this work, see "The Enterprise of Responsibility:" Reviewing Birgit Spiesshofer, "Responsible Enterprise). 

Dr. Spiesshofer also writes frequently for the Frankfurter Allgemeine Magazine Einspruch! (online) on themes of corporate governance, sustainability, and its inevitable relations to systems of trade and political governance across borders. Though these essays are produced for a German audience, she has kindly agreed to translate some of them for re-publication here. Earlier translations include (1)"Responsible Ownership" or "Benefit Corporation"; (2)  "And Who Asks the Supply Chian"; (3) "Fridays for Future, Siemens or the Australian Government - who decides?"; (4)  "Green monetary policy - "whatever it takes"?"; (5) "What is "sustainable"?" ; (6) "The Hour of the Nation-State" (see also here).

Dr. Spiesshofer has now agreed to the translation of a recent essay--Twitter & Trump - the spirits I called forth? , published originally in German in the Frankfurter Allgemeine Magazine Einspruch! (online).  The essay considers an important issue, one quite politically sensitive at this moment in the United States. Essentially the question can be reduced to an essence, one which is only a small slice of the many essences contained in this drama that are the forms of American politics at the start of the third decade of this century: what does a liberal democracy do about the speech of its elected officials when an important faction of the electorate finds  it unacceptable and an even smaller portion of that electorate, through the institutions they control, can manage or in the case of the 45th President of the United States, amplify or shut down the vehicles through which such speech is now conveyed in (otherwise) ordinary course.  Americans are incapable of this discussion now; emotions are too raw, too many political agendas are still in play; and too much realignment of political partnerships and battle lines are still being drawn. From outside the U.S., certainly, it highlights not merely the special character of law and politics in crisis, but also the way in which networks of law and norms enmesh key actors--in this case economic enterprises and political officials, in quite distinct webs of law, of norms, and of expectations well beyond the local and the contextual (e.g., here).  In this case human rights expectations appear to cut in all sorts of directions simultaneously for key participants.

I have no view on these matters; it is, as mentioned above, still far too early to have anything of value to add about the march of historical forces that are even now constructing the contours, founding premises, expectations,  the assessments of history, and the rectification of now fatally deviant and reactionary elements of society that are even now being deployed by the nation's vanguard elements to propel the state forward into what is likely the new era of American political development. But perhaps Europeans have something that might be worth considering, at one's leisure, once passions have died down, and the new master narrative is more decisively articulated for the United States.   Whatever it is that is decided by those who control American political culture it is not enough to dismiss the vents of the last several years as exceptional, as sui generis and something that will never recur.   But what is seen can not be unseen; what is done cannot be undone; what is The United States, since its founding, has been the incarnation of the constant state of exception.  The exception is the ordinary in this place.

 One can see that the essay provides much useful fruit for thought. The essay and Dr. Spiesshofer's brief bio follow. 


Column by Birgit Spiesshofer, published first (in German) in Frankfurter Allgemeine Zeitung Magazine Einspruch! (online) January 16, 2021


Twitter & Trump - the spirits I called forth?

The blocking of the American president draws attention to the legally and politically unresolved tension between the power and responsibility of companies and the primacy of politics. A column.


When Twitter, Facebook and other social media platforms decided to block the accounts of the American president after the outrageous storming of the U.S. Capitol, so that he could not incite his followers to further unprecedented actions, almost everyone who had observed with horror the dirty game that the American president was playing with the country's democracy probably felt relief at first. This simple but highly effective corporate decision effectively muzzled the (still acting) President of the United States of America. This occurred against the background of concerns publicly expressed by ten former defense secretaries, as well as legal experts, that the president might abuse his social media channels to provoke an uprising that would then allow him, under the U.S. Insurrection Act, to deploy the armed forces and torpedo the transfer of power. 


         In the days that followed, however, criticism of the networks' behavior came from two opposing directions. On the one hand, it was said that they could (and should) have blocked Trump's accounts much earlier if they had taken their responsibility to stop false news, hatred and incitement seriously; the blocking (only) at the present time therefore appeared to be motivated primarily by opportunism. On the other hand, the question was raised whether it is really an expression of corporate responsibility when Internet corporations use their technical and economic power in this way - or whether it is not rather a monstrosity that a handful of Silicon Valley billionaires, without any democratic legitimacy, restrict the freedom of expression of a man who was elected president with the votes of 63 million Americans.


Politicians cannot demand and criticize corporate responsibility at the same time


Angela Merkel said that she considered this approach "problematic." France's Minister of Economy Bruno Le Maire demanded that such decisions no longer be left to private companies. The digital oligarchy is a threat to states and democracies, he said. But who instead should have made the decision in this situation? Twitter's CEO stood by his decision, which he said was justified by the extraordinary circumstances to preserve public safety. However, he acknowledged that it set a dangerous precedent that showed the enormous power that individuals or companies have over a part of the global public discourse 


         For all the outrage, politicians are taking it too easy to brand the blocking of Trump's social media channels as a unilateral usurpation of corporate power. After all, politicians have called forth these spirits themselves under the headings of "corporate responsibility" and "gatekeeper responsibility." There is an international consensus, including that of the German government, that corporations should assume responsibility if and to the extent public bodies are unwilling or unable to fulfill their political responsibilities, especially for human rights. Such "weak governance zones" are usually thought of as Third World countries. But what if in the United States a President creates conditions like in a banana republic, and if social media companies (and possibly only they) have the decisive means to prevent further incitement and bloodshed? Is it not then legitimate and, from the point of view of corporate responsibility, even required that they exclude the President with reference to their community standards, which he accepted?


Who is to set and implement the rules of the game in the future?


The case illustrates an area of conflict that is unresolved legally and politically in several respects: corporate responsibility and corporate power are two sides of the same coin. The further responsibility is extended into the realm of ordre public, the more companies become competitors for political power. Originally, Twitter was just a platform that allowed freedom of expression in an unregulated way. To the extent that social media services are held responsible for the content of their users, they determine, qua community standards, the realization of fundamental rights, and thus essential prerequisites of a democratic polity. 


         A central question, therefore, is by whom and in what process usage regulations and community standards should be defined in the future, especially given the global presence and power of social media companies. Trump's blocking shows that this should not be left to the companies alone. The agreement at European level on a "Digital Services Act" and a "Digital Markets Act" is important and necessary, but European laws would not have helped at Capitol Hill. The CEO of Twitter is therefore right to call for a new standard for social media to be developed. Society must set the framework. Who will take the lead?

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