János Tamás PAPP: Regulating online platforms in the USA: How Section 230 became a seemingly insurmountable obstacle (Part II.)

As we discussed in our previous post, at its inception, Section 230 was seen as a boon for the internet. It protected burgeoning platforms from a potential onslaught of litigation. Without such protections, these platforms might have been wary of allowing user-generated content, fearing lawsuits at every turn. Given the volume of posts, comments, and shares, it would have been an insurmountable task for platforms to vet every piece of content for potential liability. Thus, Section 230 provided the shield necessary for these platforms to grow and for the internet to flourish as a space for open discourse. However, the very protections that spurred the growth of these platforms have now become a double-edged sword. As these platforms have evolved into influential giants, so too have the complexities of the content they host. Misinformation, hate speech, and divisive or incendiary content have become commonplace. The once-celebrated virtual town squares now carry the potential to distort public perceptions, fuel societal divisions, and even sway elections.

Given these challenges, the call for regulation is understandable. However, the U.S. government’s hands are tied, to a large extent, by Section 230. Any attempts to hold platforms accountable for user-generated content run into the protective wall of this statute. For instance, if a piece of false information is propagated on a platform leading to real-world harm, the platform remains shielded from any liability due to Section 230. This makes it challenging to incentivize platforms to be proactive in managing and moderating content. Every move towards oversight must be measured against the right to freedom of speech. There’s a fine line between curbing harmful content and stirring genuine discourse. Additionally, the global nature of these platforms means that regulations in the U.S. might have implications worldwide, or alternatively, global content can impact U.S. users, complicating the jurisdictional scope.

Moreover, Section 230 blurs the lines between a platform and a publisher. Traditional media entities, like newspapers or television networks, are held to strict standards of accuracy and can be liable for spreading false information. In contrast, social media platforms, while influencing public opinion just as potently, if not more, escape these responsibilities. They enjoy the vast reach and influence of publishers without the accompanying accountability. The dichotomy of Section 230 becomes even starker when one considers the algorithmic nature of these platforms. While they might not create content, they undoubtedly influence its reach. Algorithms decide which content is highlighted on user feeds, potentially amplifying some voices while muting others. This curatorial role is akin to editorial decisions in traditional media, yet the platforms remain absolved of the responsibilities that accompany such power.

Because of Section 230’s protection, social media companies have been largely free to develop their own content moderation policies without fear of legal repercussions. If these platforms decide to remove content or leave it up, Section 230 protects their decisions either way. This autonomy has made it difficult for regulatory attempts that aim to hold platforms accountable for user-generated content or misinformation. Furthermore, any government-led effort to mandate specific moderation practices could run into First Amendment challenges. Section 230 allows platforms to navigate the tension between open forums and moderating content without becoming entangled in consistent legal battles.

A recent decision by a federal appeals court that has eased some restrictions on the Biden administration’s interactions with social media companies. The court determined that the White House, the FBI, and top health officials cannot coerce or significantly push social media companies to remove content deemed as misinformation by the administration, particularly related to COVID-19. Nevertheless, the ruling did narrow an injunction by a Louisiana judge that previously prevented the administration from any communication with social media firms. This injunction will remain in place for the White House, the FBI, the CDC, and the surgeon general, but will not affect other federal officials. The court has allowed the administration a period of 10 days to seek a review from the U.S. Supreme Court. This case originated from two lawsuits, one by a group of doctors and another by a conservative nonprofit organization. Both accused the administration of infringing upon their free speech rights by pressuring social media platforms to censor their content.

Addressing the challenges posed by Section 230 is not straightforward. Repealing it entirely could stifle free speech, as platforms, fearing litigation, might opt for excessive censorship. On the other hand, letting it stand in its current form allows platforms to sidestep the broader societal responsibilities. There’s also a concern about the potential impact on smaller platforms or startups, which might lack the resources for extensive content moderation. Without the protections of Section 230, they could be exposed to debilitating lawsuits. Therefore, regulatory measures that would place more responsibility on platforms for user content have to grapple with the broad immunity granted by Section 230. This isn’t to say that social media platforms can’t be regulated at all, but Section 230 does present a significant hurdle for legislators and policymakers looking to place greater accountability on these companies for the vast amount of content circulating on their platforms.

Section 230, while foundational in shaping the internet we know today, has become a significant roadblock in the path of meaningful regulation of social media platforms. As society grapples with the influence and impact of these platforms, a nuanced reconsideration of Section 230 is imperative. Striking a balance will be complex but essential to ensure that the digital spaces remain open for expression while being safeguarded against their potential detrimental impacts. It’s a testament to the evolving nature of technology and society, where laws once seen as catalysts can become impediments, necessitating reflection and reform.

János Tamás Papp JD, PhD is an assistant professor at Pázmány Péter Catholic University, Hungary, and a legal expert at the Department of Online Platforms of the National Media and Infocommunications Authority of Hungary. He has taught civil and constitutional law since 2015 and became a founding member of the Media Law Research Group of the Department of Private Law. He earned his JD and PhD in Law at the Faculty of Law and Political Sciences of the Pázmány Péter Catholic University. His main research fields are freedom of speech, media law, and issues related to freedom of expression on online platforms. He has a number of publications regarding social media and the law, including a book titled „Regulation of Social Media Platforms in Protection of Democratic Discourses”.

János Tamás PAPP: Regulating Online Platforms in the USA: How Section 230 Became a Seemingly Insurmountable Obstacle (Part I.)

In the age of digital interconnectedness, the power and influence of social media platforms have become undeniable. These platforms, initially conceived as networks for friends and family to connect, have transformed into global public squares where news is disseminated, opinions are forged, and movements are born. With this massive influence, there’s a rising call in the United States for regulatory measures on social media. But how does a nation built on the principles of free speech and open discourse strike a balance between oversight and freedom? This is a particularly interesting question in a country where the First Amendment of the Constitution guarantees freedom of speech to all citizens since 1791, stating that “Congress shall make no law (…) abridging the freedom of speech or of the press”. Historically, the U.S. approach to media has been one of minimal intervention, but the digital age, with its unique challenges, has nudged the U.S. to rethink its stance. 

In the early 1990s, the Internet began to become more widespread, with the emergence of sites offering forums, message boards, and other services based on user-generated content. While this helped to promote the use of the Internet, it also led to a number of situations in which the courts had to decide whether service providers could be held liable for user-generated content. In relation to literary publications, under the US defamation tort, distributors are not liable for the books they sell unless they have clear knowledge of the infringing content and are under no obligation to screen the books they sell for this purpose. Courts started to address the liability of internet intermediary providers for infringing content posted on their sites in the 1990s, and most decisions have used this analogy, but there have also been a number of contrary rulings, which have found the intermediary provider liable if it has applied moderation on its site and failed to remove the infringing content (regardless of whether it was aware of it or not).  Thus, the strange situation is that if the provider does not carry out any moderation activity on the site, it is not liable for the content posted there by third parties, whereas if it wishes to proactively moderate the infringing content but does not remove some of it, it may be held liable. 

Although the rules on the scope of freedom of expression and the strength of the defense apply to “speech” on the internet, the specific nature of internet communication has given rise to a number of new questions or questions that have already been answered.  The first truly significant regulation on the issue of the liability of digital platforms for user-generated content is Section 230 of the Communication Decency Act (CDA230), which is part of the US Telecommunications Act of 1996. This section provided Internet operators with a degree of immunity (from the very beginning of their emergence, in fact) that allowed the digital economy in the US to flourish and ushered in a new era of Internet communication and thus freedom of speech. However, since the adoption of this section, the way digital platforms operate has changed significantly and poses new challenges to the regulatory environment.

Enacted in 1996, Section 230 was designed with the intent of fostering a nascent internet. The statute provides immunity to “interactive computer services” from being treated as the publisher or speaker of any information provided by another content provider. In simpler terms, platforms like Facebook or Twitter cannot be held liable for most of the content that their users post. The primary purpose of Section 230 is to allow interactive computer service providers to restrict the display of sexual or violent content without being held liable. The statute’s enacting clause also refers to this purpose, saying the legislature wants to remove “disincentives that impede the development and use of blocking and filtering technologies that allow parents to restrict their children’s access to objectionable or inappropriate online content”. The circumstances surrounding the passage of the law also suggest that Congress did not intend to provide complete immunity, but merely to resolve the controversy.  In eliminating a practice similar to the previous Catch-22 (i.e., that only those who voluntarily moderate content can be held liable), Congress states that no action for removal can be brought against the provider, thus forcing them to moderate the content, and the goal was to encourage moderation, not to establish complete immunity. In enacting the law, Congress was guided by the principle of promoting the continued and vibrant development of interactive computer services with as little government regulation as possible.  According to the “Findings” section of the Act, the growth of the market for interactive services has “represented an extraordinary advance in access to educational and information resources for the citizens of the United States” and “the Internet and other interactive computer services have created a forum for a real diversity of political discourse, have provided a unique opportunity for cultural development, and have multiplied the possibilities for intellectual activity infinitely”.  The rationale for introducing the legislation was also to promote the growth of political discourse and services on the Internet.

The CDA is considered by many scholars to be the legal foundation of the Internet today, one of the most important pieces of legislation protecting online speech, a highly decisive rule that can protect the Internet’s soaring growth.  The legislation was born at the dawn of Internet exceptionalism, proclaiming as a flagship of the new approach that “the Internet is different.”  The Internet, built on these 26 words, as Kosseff put it, had the potential to democratize communication itself for individuals, giving them the freedom to exchange ideas directly with each other in online forums and the ability to create an unprecedented economic boom, a vibrant and competitive free market in the United States of America.  The special regulation that protects digital platforms, and the faltering faith in their proper functioning, is due to the fact that the role of digital platforms has now gone beyond the basic services they provide, and critics argue that it is not capable of addressing some of the harms that can arise from a platform-based economy.

Section 230 gives platform operators immunity both in relation to content uploaded by users and in relation to their moderation activities. Thus, the platform operator cannot be held liable for infringing content uploaded by users, nor can it be held liable for removing any content. As social networking sites have been consistently held by US courts in a number of decisions to be service providers under Section 230, social networking platforms have the right to moderate (“censor”) the content on their services in any way they wish in order to maintain the environment they wish.  In fact, they can remove any content, leave any content untouched, in the knowledge that they have almost no liability for infringing content. 

The regulation does not discriminate on the basis of platform size, meaning that immunity applies to both small blogs and giant platforms with billions of users. Of course, the challenges that the emergence of social networking sites could pose to Section 230 could not have been foreseen when the legislation was drafted. As social networking sites are where most internet users get most of their information, these social media platforms have become an almost inescapable community space, with rules, policies, and ways of operating that have a huge influence on both social and private users. One of the consequences of the broad immunity granted to social networking sites is a phenomenon known as “collateral speech restrictions”.  It is much easier — and cheaper — for a platform to use its Section 230 immunity to remove all risky posts than to engage in serious public relations and communications battles to ensure that the First Amendment is enforced unconditionally.  They are not legally liable under Section 230 for offensive content posted on their platforms or even terrorist propaganda. The California Federal Court ruled in Fields v. Twitter that platform providers cannot be held liable even if terrorists use their sites to spread propaganda.

In short, while Section 230 shields online platforms from liability for most third-party content, it also allows them the discretion to moderate and remove content without facing legal repercussions. This dual-edged nature of Section 230 means that, on one hand, platforms can foster diverse online discourse, but on the other, they can also unilaterally decide what content is permissible. As concerns about misinformation, online extremism, and tech monopolies grow, Section 230 finds itself at the crossroads of discussions about the future of internet regulation and the balance between fostering innovation and ensuring accountability.

János Tamás Papp JD, PhD is an assistant professor at Pázmány Péter Catholic University, Hungary, and a legal expert at the Department of Online Platforms of the National Media and Infocommunications Authority of Hungary. He has taught civil and constitutional law since 2015 and became a founding member of the Media Law Research Group of the Department of Private Law. He earned his JD and PhD in Law at the Faculty of Law and Political Sciences of the Pázmány Péter Catholic University. His main research fields are freedom of speech, media law, and issues related to freedom of expression on online platforms. He has a number of publications regarding social media and the law, including a book titled „Regulation of Social Media Platforms in Protection of Democratic Discourses”.

Árpád LAPU: The EDAP, Legal Bases and the Issue of Indirect Legislation. Safeguard or Competence Creep?

The current legislative period (2019-2024) of the European institutions is without doubt an eventful one, with many questions arising for researchers to find interesting conclusions. A previous article „Stocktaking of the EP’s Current Legislative Term – One for the Books” published on this platform has examined the legislative activity of the European institutions during this mandate. This article will focus on an interesting, specific part of the legislative activity of the EU institutions during this legislative cycle, namely the European Democracy Action Plan (EDAP) package and the legislative initiatives falling under its scope. A common feature of these initiatives is the goal to protect European democracy, but also, most of the proposals under this package seem to bring up interesting questions regarding the legal bases and the lack of competence behind some initiatives.

The European Commission has initiated in 2020 December the European Democracy Action Plan, aiming to step up against various kinds of challenges to European democracy, for example, extremism, undue influence in electoral processes, manipulative content on the internet influencing elections, and protecting journalists against various forms of intimidation due to their work uncovering cases harmful to democracy. At the heart of the package, we can see the goal of the European Commission wishing to protect European democracy from various perceived threats. If we try to unpack the goals further, we can see that the legislations intend to protect many different values and priorities at the same time, such as the principle of democracy, safeguarding the fairness and constitutionality of elections, protecting European citizens from disinformation, protecting media plurality, and in the end, rule of law. These are issues regarding Article 2 TEU, but they have ramifications for the application of the Charter of Fundamental Rights as well. There were other initiatives of similar nature, like the mechanisms and procedures for protecting the EU budget and rule of law, however, due to the scope limitation; this article will focus specifically on the EDAP package.

The EDAP targets goals that are important for all Member States and citizens in the European Union, as it protects different aspects of democracy. Curious, however, why the European Commission has chosen legal bases that are not directly related to the principle of democracy, regulation of elections, protection of fundamental rights, etc., but instead legal bases of a commercial nature, serving the protection of the internal market. Due to the odd choice of legal basis, the problematic of competence creep can be observed in the proposals of the EDAP package, which serves in this form the adoption of EU legal norms in fields where no specific legislative competence has been conferred to the European Union from the Member States. Specifically, indirect legislation (as competence creep) is applied, where the EU legislates areas that are considered to fall within national autonomy, by cutting horizontally through multiple policy areas, not directly related (in this case) to the regulation of the internal market. In another case, the existing competence of the EU is considerably overstepped by certain parts of the proposal. Three significant, illustrative legislative proposals from this package are the modification of the 1141/2014 regulation on the statute and funding of European political parties and European political foundations, the Proposal for a Regulation on the transparency and targeting of political advertising, and the European Media Freedom Act.

Amending the Regulation on European Political Parties and Foundations

The European Commission has initiated the modification of regulation 1141/2014 in November 2021, with the goal of adopting clearer rules on the financing of European political parties and European political foundations, and on sponsored political content (to be in line with the proposal for a regulation on the transparency and targeting of political advertising). The proposal of the Commission, among other goals, included the introduction of an additional category of revenue sources for the regulated entities, establishing the notion of direct funding, and has proposed other measures of financial nature. However, the proposal has also included parts that were not in connection with the financial regulations of the European legal entities in question. The legal basis for the modification was the same as for the adoption of regulation 1141/2014, namely Article 224 TFEU, laying down the regulations governing political parties at European level, meaning European political parties and European political foundations, especially concerning rules regarding their funding.

In Article 3, paragraph 1. (d) the proposal obliges European political parties and foundations to ensure that their member organizations observe the values expressed in Article 2 TEU. Furthermore, according to Article 21 of the proposal of the Commission, the members of European political parties are obliged to demonstrate their compliance with Article 4 (1) point J (adopting internal rules regarding gender balance), and they would have to continuously publish information on gender representation on their website. For the European political party or European political foundation to be able to receive funding from the general budget of the EU, they need to comply with these obligations. If the member organization does not comply, the European political party or foundation might be faced with sanctions, according to Article 30 of the proposal, the party or foundation in question might suffer financial sanctions or in worse cases, might even be removed from the register, losing the status of “European political party” or “European political foundation” in accordance with Article 19 of the proposal.

Moreover, Article 24 of the proposal would lift the ban on the European political parties and European political foundations not to be able to support referendum campaigns in any of the Member States, “when those campaigns concern the implementation of the Treaties of the Union”. This means that in case the Commission proposal would be adopted, a European political party (having member parties from inside and outside of the Union) would have the possibility to support certain referendum campaigns in the Member States.

The proposal, therefore, would not only regulate European political parties but potentially extend to influence national political parties (thus national politics) as well, obliging them to publish information regarding their activities, to modify their internal rules and it would even allow for European political parties with an extensive range of memberships to finance referendum campaigns in the Member States. The latter is even more problematic if we consider that in some Member States it is possible to hold referenda and elections close to each other (or even on the same day). The European Commission has thrived for indirectly regulating national political parties and election rules (a form of competence creep) using the legal basis of Article 224 TFEU, which should only serve to regulate European political parties and European political foundations — and particularly their financial governance. The ordinary legislative procedure of this file is currently in progress, the last trialogue meeting was held on the 29th of March, with no agreement reached.

The Proposal for a Regulation on the Transparency and Targeting of Political Advertising

The Commission has presented the proposal on 25 November 2021 with the goal to complement the rules of the Digital Services Act, specifically focusing on sponsored political advertising. The legal basis of the proposal is Article 114 of TEU (“adoption of measures to ensure the establishment and functioning of the internal market”) and it seeks to establish a common regulatory framework that would enhance the transparency of sponsored political advertising both online and offline. The regulation would require political adverts to be clearly labeled as such and include information on who is the sponsor, the price of the advertisements, and the elections or referenda to which it is linked. Publishers are also required to issue a clear statement regarding the political nature of the advertisement and to make information available regarding the context of the political advertising. They would be obliged to filter if a particular advertisement does not comply with certain transparency requirements. The proposal would also adopt harmonized rules for targeting and amplification techniques of political adverts, and oblige national authorities to sanction those who infringe with the regulation. The trialogue negotiations are currently in progress.

The proposal states in (15), (16), and (17) that the core expression of the regulation, “political advertisement”, has no legal definition in EU law and therefore anything that is disseminated or published directly or indirectly on behalf of a political actor or anything that can be presumed to be liable to influence political debate “except for messages of purely private or purely commercial nature” can be deemed a political advertisement. Also, any publication or dissemination that is “liable to influence the outcome of an election or referendum, legislative or regulatory process or voting behavior” is also a political advertisement.

From this description, which especially states that it does not include purely private or commercial messages, it is evident that the goal of the regulation is not ensuring the protection of the internal market (contrary to the legal basis chosen, as presented above), on the contrary, it is focused on protecting elections, referenda, legislative processes, etc. It clearly states that any ad that might influence national elections falls within the scope of the proposal. Regulating election processes (except for the common rules regarding European Parliament elections) is not within the competence of the European Union. It is safe to assume that the goal of the legislator in this case is also to regulate areas outside of clear-cut EU competences.

The European Media Freedom Act

One of the goals of EDAP is “to protect and empower journalists, and to ensure media freedom and pluralism throughout the Union”. In September 2022, the proposal for the “European Media Freedom Act” (or EMFA) was presented by the European Commission. It takes the Audiovisual Media Services Directive as a starting point and aims to “set rules to protect media pluralism and independence in the EU, including safeguards against political interference in editorial decisions.” The initiative would establish the European Board for Media Services, having a diverse range of tasks according to Article 12. It would — among other tasks — support the Commission in ensuring the correct application of the proposal, and would provide opinions for requests for enforcement measures in case of disagreement between the requesting authority and the requested authority. It would also provide opinions on national measures concerning media service providers, on national measures likely to affect the functioning of the internal market, on national decisions impacting media pluralism and editorial independence, etc. In case of its adoption, it would establish an authority that would monitor national media regulations and decisions of public authorities of the Member States regarding media regulation.

The legal basis of the initiative of the Commission is Article 114 TFEU, “which provides for the adoption of measures for the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market.” Under the pretext of protecting the functioning of the internal market, the European Commission aims to regulate and monitor national media legislations, administrative decisions, and the markets of Member States. It is clear from the goals of EDAP that in this case, the central problem that the regulation is trying to solve is not of an economic nature, but rather protecting values and fundamental rights, such as the pluralism of media and freedom of the press. The legal basis serves the goal of avoiding the problem of not having the competence and majority needed to initiate legislation purely regulating media realities in the Member States — hence it constitutes indirect regulation, i.e. as competence creep. The proposal in question is currently in the first phase of the legislative procedure.

The Problems with Indirect Legislation

The following examples show that the European Commission often chooses legal bases for proposals (especially in the framework of the EDAP package) that do not coincide with the main purposes of the proposals. It often references the protection of the functioning of the internal market to regulate national election processes, media regulation, administrative and other decisions, and generally, questions of democracy, rule of law, and fundamental rights. The EU often has the necessary competence in the field of the functioning of the single market to adopt legal acts with a qualified majority instead of consensus in the Council of the European Union, and also, the Commission can use such legal bases to try to regulate fields where the EU bears no legal competence at all. This way the EU can regulate other fields where the Member States have the right to adopt legislation (indirect legislation), simply through legal acts adopted based on a field where the EU does have competence.

However, it is questionable, whether Member States tend to support such proposals in the Council. As Masters of the Treaties, they are not interested in losing competence in fields where they have not transferred it to the EU. This method therefore presents practical problems, but also theoretical ones as well. Indirect legislation (which is one form of competence creep) does not respect the principle of conferral, the principle of subsidiarity, and the principle of proportionality, as regulated in Article 5 TEU. The EU “shall act only within the limits of competences conferred upon it by the Member States in the Treaties”, in areas not falling within its exclusive competence, “shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States” and “the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties”. In the end, the original source of sovereignty is the people of each Member State. If the Commission does not respect the indirect decisions of the peoples of the Member States regarding competences, it breaches the principles of rule of law and the ideal of popular sovereignty, in spite of the fact that the goals of EDAP are important and in the end try to protect democracy and rule of law in the EU. Thus, only one question remains: Can measures that breach the rule of law and the principle of democracy nevertheless safeguard European democracy?

Árpád Lapu is a policy adviser on constitutional issues at the European Parliament since 2019 and a PhD student of the Károli Gáspár University of the Reformed Church in Hungary. Between 2017-2019, he worked as an adviser at the Cabinet of the Minister of Justice of Hungary, conducting comparative constitutional analyses. He has earned his JD at the Pázmány Péter Catholic University in Hungary, has a BA in international relations from the University of Szeged and an MA in European and international administration from Andrássy Gyula German Speaking University in Budapest. He has completed an Edx MicroMaster in cooperation with the Catholic University of Louvain (UCLouvain) in international law. His field of research is non-participation in armed conflicts in international law and constitutional norms regarding non-participation in armed conflicts. He has written publications regarding the future of the EU ETS system of the European Union, institutional reform proposals of the Union, and researches in the field of social sciences.

Soma BÁCSFALVI: Constitutional Contradictions of Constitutionalism in the Global North

As in my previous blog post I tried to make a brief comment about some of the different views (or progress) of the rule of law principle/value, in that article, I did not write about the French system since it has a separate set of values at its foundation: Constitutionalism. So, in this article, I am going to review what constitutionalism is, how the French system is built up, and what type of challenges constitutionalism has to deal with nowadays, thereto I will also make a summary of the Polish crisis since this comparison duly illustrates the conflicts on the Global North (used as a term of reference describing a complex social, economic and democratic “coalition”)  about such principles as the rule of law and constitutionalism. Articles about Poland are getting more actual these days since there will be elections soon this year, where a core question will be whether and if so how they can restore Poland’s rule of law.

Constitutionalism has had its own, serious challenges in the last decade (just like the rule of law and democracy), both globally and on a regional level. In this short article, I cannot thematize all of them, but I would highly recommend Nóra Chronowksi’s book about the constitutional challenges in the 21st century, in which the author presents numerous challenges, such as the interconnection of constitutionalism with globalization, with particular reference to the conflicts of the relation between the human rights and business, to the European processes we went/are going through right now, and with special focus on the Hungarian system

It is important to have such a discussion about these fundamental principles like the rule of law or constitutionalism, since in the second half of the 20th century – after the two world wars – these values were meant to be strengthened, but now at the beginning of the 21st century, we can observe a stagnation and a decline. This statement is supported, among others, by the 2020 Freedom House report which states that 75% of the world’s population detects a deterioration or decline in democratic processes, a democratic erosion that has been observed since approximately 2006 according to this report. This duly illustrates the crisis of the perception of the democracy that has dominated Western societies in recent decades.

For starters, I define what I mean when I talk about the concepts of constitution and constitutionalism, and how they connect to my research topic: the rule of law. The literature on constitutionalism often looks at this value from a positive legal standpoint. From this view, the constitution is a legal norm that regulates the essentials of the state’s political and constitutional structures and apparatus and provides for constitutional rights and the basics of states’ social and economic system or even less. However, I think it is to include much more than only that. The same applies to the rule of law and constitutionalism. We cannot look at important principles only in a formalistic approach. Formalism is not enough, since these principles shape our everyday lives and the functioning of our countries. Constitutionalism is not only about form, but it does also have a material aspect as well. Just like the rule of law, constitutionalism has its own fundamental principles (some of them are common and interconnected) and it does have to prevail in the legal system. When we are talking about the constitution we must think about a piece of legislation that is (i) capable of limiting and effectively checking the exercise of public power, (ii) to defend and respect the citizens and their human and other constitutional rights, equally. We cannot talk about constitutionalism without such principles as the rule of law, nor can we talk about constitutionalism without democracy or the popular sovereignty, and last but not least, it is a basic guarantee in a system of parliamentarism

These essential principles I just listed above, need to prevail together, since if just one of them is (not) able to function on its own, then we risk falling short of living in a traditional “liberal democracy”, which should be a main purpose as “civilized societies”. These societies and countries are often described in the literature and the politics as well, as the Global North, which do not form a monolithic bloc, but have conflicting (economic and political) interests and perceptions, but there is something, that keeps them together, which is nothing more than maintaining the status quo they created under the centuries. 

One of the most powerful countries of the Global North is France and since I already introduced briefly the British and German systems, I am going to do the same with the French and the Polish systems since they are on two different sides of the conflict between constitutional democracies and illiberal ones, which I hope will help facilitate and understanding of what kind of persistent constitutional differences there are. 

The French solution, the French Constitutionalism

The notion of the rule of law does not appear normatively in the French Constitution, so it follows that the public law basis of the French system is not the Rule of Law, but constitutionalism. Under French absolutism, contrary to the British constitutional monarchy, by the very nature of the absolutistic governing, the courts in France – during the ancient regime – did not have the power to constrain the monarchy in any meaningful way but were instead integrated into the institutional system of an absolute monarchy. Which, unlike in England, was held together by an extensive bureaucratic state apparatus. The fact that judicial jobs that could be bought by a narrow elite of the bourgeoisie and the concomitant spread of judicial corruption created animosity between the establishment and the later revolutionaries, who (following the Great French Revolution of 1789) were already constrained by Montesquieu’s principles regarding activist judicial lawmaking

Nowadays in the French system, the Constitutional Council (Conseil Constitutionnel) is responsible for adjudicating on constitutional matters, which includes ex ante review or even the monitoring of the fairness of the elections. The Conseil Constitutionnel (under Article 56 of the French Constitution) has nine members each appointed for nine years by the President of the Republic (3), by the President of the National Assembly (3), and by the President of the Senate (3). Although this structure of the institution has had a lot of criticism over the decades, mostly of its direct connections with the politics. At the end of 1986, Michael H. Davis already questioned if it could be even called a court or not, because of its nature. He said that “despite the superficial similarities between the U.S Supreme Court and the French Conseil Constitutionnel the American system of judicial review ‘can have no counterpart in the French system’ that French legal and political theory is inconsistent with an effective supreme court, that there is ’no possibility’ in the French and the American systems can surmount this ‘major difference’ and that the Conseil is simply not a ‘true court’”. On the other hand, since then, the Conseil vindicated more power to itself with a constitutional amendment in 2008, which created a new procedure of ex-post review adding to the pre-existing, mostly ex-ante review powers. Today, the Conseil Constitutionnel has the competence to review cases referred with priority to it (QPC).

The Constitutional Council was institutionalized by the Constitution of the Fifth Republic in 1958 with the new Constitution (also known as the Constitution of Charles De Gaulle). President De Gaulle, in fact, wanted to limit the power of the National Assembly with the Conseil Constitutionnel, but the National Assembly, by a decision in 1971, made the text of the 1789 Declaration of the Rights of Man and Citizen part of the Constitution (as a so-called “constitutional block”, bloc de constitutionnalité, as clarified by the 1946 Constitution, which allowed it to them to exercise considerable fundamental rights jurisdiction. It is important to note here that Article XVI of the 1789 Declaration states that the separation of executive and legislative power is a fundamental requirement of constitutionalism, which, as I have said, is the basis of the French public law system. 

The Polish Illiberalism: A Polished System of Constitutionalism? 

Shortly my answer to the question above is: No. The illiberal twist that Poland (and also  Hungary) went through in the last decade created several constitutional questions so let’s look at the Polish crisis which usually appears as a counterpart of Western-style constitutional democracies (such as France), since, as I have said, they are main characters of those rule of law disputes that dominates the European Union. 

It is quite well-known that the origin of the constitutional crises in Poland is the conflict surrounding the appointment of judges of the Constitutional Tribunal, but as Tomasz Tadeusz Koncewicz pointed out that a purely institutional approach won’t be enough to rebuild the country’s situation with rule of law, mainly because this decline is linked to an on-going public disengagement and indifference with the principle.  

After 1989, just like the other Eastern European countries, the main goal was to dissociate from their communist past, although Poland had a more symbolic role during the regime change period in this region since the well-known Solidarity Movement was the first legally functioning opposition party (which had 10 million members at the time). In 2015, Poland changed the system it created at the beginning of the ‘90s, by stepping on a new path defined as illiberal democracy or populist constitutionalism (Zoltán Szente thinks that this is the most accurate term to use because it refers specifically to the situation in Poland and Hungary.). Surprisingly, these EU members, Hungary and Poland are often paralleled with countries such as China, or Russia, whose constitutional systems are very different from theirs, therefore making these comparisons obviously exaggerated. It is therefore very difficult for legal scholars and political scientists to define or classify these systems and their changes, such as electoral authoritarianism, stealth authoritarianism, and hybrid regimes. But there are some points that are common, like the way in which the ruling elites got into power and their relationship with constitutionalism and the rule of law. This legal transformation is also described in different ways by others such as “counter-constitutionalism” or “autocratic legalism”.

The main problem that is often criticized in this region, including Poland, is that the Polish people have never really experienced learning the principles of liberal democracy and accepting their responsibilities to the community. As Tomasz Tadeusz Koncewicz wrote: “50 years of Communism were not conducive to building participation and trust in the state and the law, not to mention the short 20-year (1918 – 1939) interwar period (…) Meanwhile, the virtues of liberal democracy in the form of tolerance, respect for difference, and pluralism, never became part of the daily life and practice of Poles”. 

Challenges of Constitutionalism

Several problems have emerged in the recent decades which one by one possibly could not be strong enough to erode such basic fundaments like the rule of law and constitutionalism, but together they present a huge challenge regionally for the European Union and in a wider sense for the Global North as well. In the last decade, we have been through financial-economic crises, migration, Brexit, and several constitutional crises in Central-Eastern Europe (branded as illiberal twists). These problems cannot be separated from the processes that European public law went through in the meantime, since if we look at the last crisis I mentioned (the “illiberal” twists in Hungary and Poland) triggered several EU-level mechanisms and procedures, not least because they were a reaction to the systematic erosion described above. The first instances of the Article 7 TEU proceedings – along with their dysfunctions – and the appearance of several new instruments such as the rule of law mechanism or the rule of law Conditionality Mechanism (Regulation 2020/2092) are all of those issues that should be mentioned here, but their analysis in detail requires further posts for many reasons. On the one hand, they were multiplied in the last couple of years, and on the other hand because all of these procedures suffer from at least partial dysfunctions, which can and must serve as a valid source of criticism against the current operation of the European Union. This is an essential period, in which we need to restore and protect the values and principles that started eroding in the last decade(s).

Soma BÁCSFALVI is a Msc student of law at the Faculty of Law and Political Sciences of the University of Szeged, Hungary, and a scholarship student of the Aurum Foundation. As a former intern with the presidential cabinet of the Hungarian Constitutional Court, his research focuses on the interconnections of national constitutional law and European public law, in particular on the rule of law and its manifestations in the European Union.

Charles N.W. KECKLER: What The Administrative State Could Offer in Regulating Artificial Intelligence: An IA for AI?

The Artificial Intelligence (AI) Act has prompted discussion in Europe and beyond over what its adoption might mean for the Union and its Member States as well as for their populations. There is a similar and thoughtful conversation currently blossoming in the United States as well, as Congress is now beginning to examine artificial intelligence in a serious and bipartisan way. Senate Majority Leader Schumer has announced AI Insight Forums this fall, convening experts from multiple disciplines to deliberate on this evolving technology. This is however only the stepping stone to further, much more difficult conversations, one of which I intend to start in this post. If these ‘insight forums’ are successful, one insight that could emerge from these discussions – and I would encourage it to be consciously and deliberately raised – is the need to institutionalize a bipartisan, autonomous, expert, and deliberative process regarding the management of AI. 

In other words, one of the takeaways should be that the federal government needs a permanent body to address AI. How we have approached transformative technologies in the past implies that this establishment should be a new bipartisan commission, created by Congress as a part of the Executive Branch, but with statutory independence. This new independent agency (the IA for AI mentioned in the title) would be built on the legal and organizational template developed over the last century and a half of American administrative law, reflected in longstanding entities such as the Securities and Exchange Commission or the Federal Communications Commission (FCC).  In such agencies, a bare majority of commissioners are selected solely by the President, while the remaining members are proposed by the opposition party in the Senate (currently Republicans). After confirmation by the Senate, commissioners can be removed by the President during their terms of office only for good cause, rather than for a mere policy disagreement, and are thus deemed to offer “independent” judgment. For an issue as complex as AI, a substantial commission of perhaps nine to fifteen members would be appropriate, because it could reflect multiple viewpoints beyond just partisan perspectives: offering expertise on the technological, economic, legal, and social dimensions AI implicates. 

I do not make this recommendation of this kind lightly. Even when confronted with fundamentally new problems, we should consider first if our existing government can be adapted before creating any new organization. Moreover, independent agencies bring about legitimate concerns regarding constitutional accountability –mitigated but not fully eliminated by having them led by appointees from both parties who can oversee one another. However, in this circumstance, it is apparent that ultimately AI will neither remain ungoverned nor solely in the purview of the states. 

Sooner or later there will be a national policymaking apparatus, and none of the existing federal agencies – including, notably the Federal Trade Commission, which has tried to extend its powers to exercise jurisdiction in this area – have the necessary clarity of mission, imprimatur of Congress, or technical expertise. Other possible solutions such as an expansion of the Office of Science and Technology Policy within the White House, lack the independent resources and authority needed and will always remain vulnerable to partisan imperatives. A high-performing agency requires three critical components: (1) a clearly defined mission; (2) the resources and authorities to carry out the mission, and; (3) an intellectually pluralistic leadership that resists groupthink and prevents mission deviations in any direction. For AI, no existing organization meets these criteria – new governance is needed, and it would naturally tend to take the independent agency form

The independent agency is, in fact, our historically typical institutional response to transformative technologies. The Interstate Commerce Commission, the first independent agency, arose in the wake of the challenges posed by railroads. The FCC was created in response to the radio revolution, the Civil Aviation Board oversaw the aviation industry’s growth, and the Atomic Energy Commission governed the dawn of the nuclear era. Whether AI will ultimately be the most profound innovation of the twenty-first century, as both its enthusiasts and its critics believe, is yet to be seen. But it is certainly likely to prove as complex and revolutionary as atomic energy, wireless communication, the airplane, and the railroad. Despite the imperfections of the independent agency form, it has shown itself effective in addressing the complexities of these new technologies; the time-limited and advisory National Security Commission on Artificial Intelligence already generated valuable insights and recommendations before terminating at the end of the 2021 fiscal year. By acting in a bipartisan and autonomous way, these commissions made concrete an American commitment to incorporate key innovations into our collective life independent of our broader political debates. 

More practically, most independent agencies are products of divided government, maintaining the bipartisan perspectives behind the creation of the agency. My doctoral research, as well as my government experience, suggests that this tension can serve a positive role, as commissioners with different views keep each other honest, prevent mission creep, and maintain the appropriate focus on tasks Congress and the American people want the agency to perform. Understanding that we cannot and should not wait to get started in the critical task of AI governance, a commission is not only the better choice but the only realistic choice for a new agency with significant powers. Bipartisan leadership on this type of issue is the proper response, but often that conclusion can only be arrived at under a divided government – when it emerges as both a political compromise and a functional solution. 

Of course, there is generally little appetite on the right side of the aisle for creating new federal authorities and agencies. The energy is rather directed toward consolidating programs and trimming back federal power, and I am sympathetic to that view as a constitutionalist. In this circumstance, though, conservatives’ healthy skepticism of the national government can be reconciled with the need to start responding to a generational national challenge, by carefully limiting the jurisdiction of an initial commission overseeing AI. The statutory authority of this body should at first, and at least for several years, be restricted to the civilian artificial intelligence programs of the federal government itself, including the federal work of its contractors and grantees. In line with Executive Order 13,960 (which I was honored to participate in developing), the civilian-use commission would encourage agencies to adopt beneficial AI but to do so safely and in line with American values. Crucially, however, a commission would have the resources and regulatory authority to sponsor its initiatives and enforce its guardrails. Starting with the government regulating its own use has been the sensible approach taken by Sen. Peters leading the Committee on Homeland Security and Governmental Affairs, and not coincidentally, it is the area where Congress has had real if modest, legislative success. The AI in Government Act, for instance, laid the groundwork for a robust strategic review of AI usage we conducted at the Department of Health and Human Services. Unfortunately, most other agencies were less successful in implementation; but a centralized body with authority could provide the sometimes-missing ingredients of prioritization and executive leadership. 

The governance model proposed here, by starting quickly, but in a limited and well-defined fashion, draws inspiration from AI itself. The model for creating new technologies is iterative and incremental development, in which the learning extracted from one stage lays the groundwork for the next. A regulatory body claiming complete power over all AI would be unrealistic and overly intrusive, inevitably out of its depth unless it radically restricted innovation. By contrast, a limited commission could have both the capability and authority to deeply but securely investigate AI employed within the government, set standards for auditability, and monitor the dynamic evolution of models to assess their stability and performance over time. Just as an AI ingests an initial set of well-characterized data as a training set before being applied to novel input, government applications can serve as a kind of “training set” for AI governance. In parallel with oversight and inquiry into government AI, the commission should have a research budget, and be empowered to engage with the private sector, academia, and the public. Through case studies and evaluations of the government’s AI projects, the commission can assess the risks, benefits, and effectiveness of different regulatory approaches. This information will prove invaluable if and when the commission expands its scope to regulate AI in the private sector. Regardless of any future expansion, by developing robust guidelines and best practices for AI implementation within the government, the commission can establish a broader model of responsible and ethical AI usage.

Perhaps the most critical deficit for our government in the twenty-first century is the public’s lack of trust. Given the power and opacity of AI, it is of special importance that any entity regulating it overcome the mistrust and cynicism that attaches to our institutions, both new and old. Although institutionalizing bipartisanship will go partway to addressing this, there is no royal road to credibility – it must be earned, and this requires time.

Proposals to empower new government entities to regulate or even own and control all private AI models face insurmountable challenges of trustworthiness and competence. A fortiori, yet more justified suspicion from national populations will inevitably attach to well-intentioned but unrealistic plans for international governance of AI, like that of Bremmer and Suleyman in the most recent issue of Foreign Affairs, given that even national governance systems have yet to be successfully proved. I agree with those authors that AI’s “complexity and the speed of its advancement will make it almost impossible for governments to make relevant rules at a reasonable pace. If governments do not catch up soon, it is possible they never will.” Realistically, however, their proposal will frustrate that very goal, by wasting time we do not have on overly ambitious governance plans, and delaying the kind of feasible next steps widely recognized as urgently needed.

To maintain public and industry support, any AI governance agency will need a track record, and the time to begin building it is now. If and when Congress chooses to move toward more substantive regulation, it will have a solid political, organizational, and technical foundation on which to do so. The alternative is to begin an agency – probably in reaction to some future crisis – at square one. In a field of immense complexity and dynamism, such a reactive (non)strategy will be at best ineffective, and at worst generate hasty, ill-considered policy errors. Instead, we can act now to craft a forum where the government can learn before acting, and in the process of learning, teach. 

Creating a new federal executive agency is never easy, particularly for Republicans, and is understandably even more difficult when the President is a Democrat. Yet a bipartisan independent commission created now, while Republicans have the House, is the one sure method to guarantee a conservative perspective will always have a seat at the table whenever our national strategy for AI is shaped. The willingness of the Senate Majority Leader and the President to approach this issue in a relatively bipartisan way creates an opportunity to take the first logical step toward sensible AI governance before the uncertainties of election-year politics cause the legislative possibilities to vanish. Precisely because a carefully circumscribed independent agency for artificial intelligence in government is only a beginning, it is achievable, and able to put us on the road to a safe and prosperous America in which our innovation is working for and with our citizens, rather than against or in place of them. We do not need a heavy hand on innovation, but we do need to keep an eye on this transformative technology; we need an IA for AI. 

Charles N. W. Keckler is a graduate of Harvard College, where he was elected to Phi Beta Kappa and received his B.A. in Anthropology, magna cum laude. He went on to receive his M.A. in Anthropology, and his J.D., from the University of Michigan. He has served, during two presidential administrations, in several senior appointed positions in the U.S. Department of Health and Human Services, including Senior Advisor to the Secretary and Acting Deputy Secretary, and from 2017-2020, led the Department’s award-winning transformation initiative, ReImagine HHS. Between his periods at HHS, he was twice confirmed by the Senate as a minority party member of the Board of Directors of the Legal Services Corporation. His academic experience has included teaching courses in various disciplines at Harvard, the University of Michigan, the University of New Mexico, Northwestern, Pennsylvania State University, Washington & Lee, and George Mason University.