Emory Law Journal


Aziz Z. Huq


Social media platforms such as Facebook, Twitter, Instagram, and Parlor are an increasingly central part of the democratic public sphere in the United States. But the prevailing view of this ensuing platform-based public sphere has lately become increasingly sour and pessimistic. What were once seen as technologies of liberation have come to be viewed with skepticism. They are now perceived as channels and amplifiers of “antisystemic” forces, damaging the quality and feasibility of democracies. If it is justified, this skepticism yields a difficult tension: How can the state protect its democratic character against unravelling pressure from actors who are usually understood as necessary components of democratic practice? What happens, that is, when the private infrastructure of democracy is turned against the project of collective self-rule?

Of course, this is not the first time that a private actor understood to be a necessary component of the democratic system has turned out to pose a potential threat to the quality of democracy itself. The paradox of regulating private actors qua threats to democracy has been both recognized and theorized in relation to parties of the extreme left and extreme right in postwar Europe. The principal theoretical lens through which those earlier challenges were analyzed went under the name of “militant democracy,” a term coined by the émigré German political scientist Karl Loewenstein.

The midcentury militant democracy debate, this Article suggests, offers an alternative frame for evaluating the problem of digital platforms—now Facebook, tomorrow the Metaverse—and democracy. Because this debate unfolded outside the scope of the First Amendment, it starts from different premises and provides an opportunity for considering digital platforms’ role in a democracy from a novel perspective. Of course, it is not possible to generate in some mechanical way a laundry list of effectual interventions today from yesterday’s experience with anti-systemic parties. But this Article suggests that the midcentury debate on militant democracy can illuminate by suggesting questions and issues that are marginal or ignored within First Amendment discourse. This Article concludes with five such “lessons” from that earlier debate.