Neil Netanel has posted this draft on SSRN (forthcoming, Cardozo Law Review). Here is the abstract:

Social media inflict multiple harms on liberal democracy. Comprehensive meta-analyses of the scholarly literature conclude that social media are a significant factor in emergent authoritarian populism, dwindling political and social trust, growing polarization, and barriers to gaining political knowledge in established democracies. Social media also have corrosive effects on democratic institutions. They challenge all democratic political authority, fuel the disintegration of traditional and stable political parties, empower free agent politicians who are not beholden to party leadership, and render effective government based on compromise exceedingly difficult. The neoliberal techno-utopianism and First Amendment jurisprudence that dominate American law, policy, and political thought have presented nigh-insurmountable obstacles to legislative and regulatory proposals to combat social media’s threats to democracy in the United States. The political theory and practice of “militant democracy,” I argue, is a superior framework for defending democratic institutions against social media harms. Militant democracy arose as a central feature of European post-war constitutionalism and human rights law. It views democracy as inherently precarious, at risk of being undone at the hands of anti-democratic forces that, like Nazism in the Weimar Republic, exploit democratic freedoms to undermine democracy. Democracies, it posits, must actively defend themselves against those threats, if necessary even by preemptively limiting democratic liberties. Militant democracy also calls upon democratic states affirmatively to foster the conditions for a robust democracy predicated upon an egalitarian, inclusive and rationally deliberative public sphere. Social media generally threaten democracy in ways that are more diffuse than the antidemocratic political movements that were the traditional, core concerns of militant democracy. I argue in this Article that the principles of militant democracy should nevertheless be applied to counter the threats that social media pose to enduring democratic governance. In so doing, I critically access and offer as an example recent European regulatory initiatives within the framework of the European Democracy Action Plan, with a focus on the Digital Services Act, adopted in October 2022. Given the “Brussels Effect,” those European measures will almost certainly inform social media practice in the U.S. as well as in Europe.