Sovereignty and Liberty in the Internet Era
'Sovereignty in Focus: Domestic, European and Global Perspectives' (Rick Rawlings, Peter Leyland and Alison Young, editors), OUP 2013, Forthcoming
23 Pages Posted: 9 Feb 2013
Date Written: February 8, 2013
The global revolution in communications technologies and services is fracturing the historic relationship between the media and the state. That relationship, born in the early print era, was first framed by the territorial authority of sovereigns and later found new legitimacy in the rise of popular sovereignty, thus becoming a definitive feature of the modern liberal democratic state. For centuries, states have sought to impose their territorial boundaries on the flow of information and ideas. This however has required ever increasing inventiveness and cost as new communications technologies have both empowered and threatened the security, authority and legitimacy of the state. In the internet era, the state’s capacity to control its public information sphere is now being tested to exhaustion.
Supranational constitutionalism, inspired by European achievements, is widely seen as the answer to the waning of state capacity and authority. In the sphere of public expression, constitutionalised treaty-based rights and obligations are now thought to provide a bedrock of common principles to govern restrictions on speech concerning public institutions, public affairs and public figures. In this transition to supranational authority, the long held sovereignty of the state over public access to information and ideas is necessarily shared, pooled or even dispersed. This paper argues however that constitutionalised supranational law, even when leavened with legal and political pluralism, is incapable of addressing the key problems of public expression for democratic as well as non-democratic states. Supranational judicial processes, in particular, have produced legal doctrines and principles for public expression that are both too thin and too thick to replace the beleaguered but better suited political and judicial forums of the state.
The failure of supranational constitutionalism to provide a workable common understanding of freedom of speech underscores the deep uncertainties of present times. State and supranational regimes are co-existing unhappily in the recognition that traditional notions of sovereignty are fading away without convincing conceptual or practical replacements. At the same time, national and supranational forms of authority are also being cross-cut and undermined by the rise of global networks, which are flooding the world with digitised information and fostering new forms of association. Yet these networks, which typically rely on market based internet services and public participation by choice, are better at disrupting than replacing traditional forms of authority and collective agency.
This paper shows the primary importance of community and locality in finding solutions to the challenges of public expression. While we are collectively and inevitably assaulting the weakened territorial bounds of the media state relationship, we have no replacement for its capacity to resolve problems of harmful and offensive expression: hence the continuing vitality of bonded territorial and popular sovereignty in delivering freedom of speech in the internet era.
This paper has been revised for publication.
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