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I·CONnect

Blog of the International Journal of Constitutional Law

Introduction: Book Roundtable on Margit Cohn’s A Theory of the Executive Branch: Tension and Legality

Rivka Weill, Harry Radzyner Law School, IDC

Professor Margit Cohn’s A Theory of the Executive Branch: Tension and Legality, published by Oxford University Press, could not have been timelier. It arrives on the bookshelves as democratic backsliding and the spread of Covid-19 redefine the relationship between the rule of law and executive power. In this book – which is rich in drawing from different fields of knowledge: political science, philosophy, law, history, and public administration –  Cohn aims to offer a universal theory of the executive relevant to all Western democracies by drawing on two important, yet seemingly opposing traditions, the US and the UK. While these two countries seem to be polar-opposite in their choice of a governing system—the US adopting a supreme formal constitution with a presidential system, and the UK enjoying a flexible constitution with a parliamentary system—Cohn reveals that they share surprising commonalities in the ways executive power is exercised. Cohn finds this convergence to be “no less than astounding” and suggests that it “has never been recognized before.” (p. 162).[1]  

Cohn accurately defines the challenge of the executive in the modern era: the impossible tasks of complying with the law yet addressing exigencies and emergencies of modern life; being subservient to the law and yet, efficient. She finds that the executive achieves this mission by being concurrently subject to the law yet above the law. She offers a rich taxonomy of thirteen different ways in which “fuzziness in law” creates the appearance or formality of the executive’s subjection to the law but substantively allows a relatively free hand to the executive. Cohn’s taxonomy takes into account the identity of generators of fuzziness—the constitution, the legislature or the executive.

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Published on July 23, 2021
Author:          Filed under: Reviews
 

Emergency Law in Spain: the Spanish Constitutional Court’s case law

Germán M. Teruel Lozano, Lecturer in Constitutional Law, University of Murcia

When the Constitution reached its twenty-fifth anniversary, back in 2003, Professor Cruz Villalón highlighted the period of “constitutional normality” that we had lived through. In recent years, that normality has been disturbed by some turbulences that have forced the activation of some exceptional mechanisms provided by the Constitution in order to restore democratic normality. This was the case in 2010 with the declaration of the first state of alarm, in order to face the wildcat strike by air traffic controllers; in 2017 with the insurgency in Catalonia and the application of art. 155 of the Spanish Constitution (SC) to exercise federal coercion; and in 2020-2021 with the declaration of successive states of alarm to face the covid-19 pandemic. In any case, I think the balance is positive: the Spanish Constitution has demonstrated its strength and its validity also in the exception, affirming its guarantees to preserve our freedom and prevent abuses of power.

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Published on July 22, 2021
Author:          Filed under: Analysis
 

How we can detect illiberal constitutional courts and why we should be alarmed – Hungarian and Polish examples

Tímea Drinóczi, Visiting Professor, Federal University of Minas Gerais, Brazil; Professor at the University of Pécs.

In the last couple of years, formerly well-respected liberal constitutional courts have been transformed into illiberal constitutional courts. We should learn lessons from Poland and Hungary, especially in Europe.

Illiberal constitutional courts intentionally undermine the democratic minimum core but only indirectly – they attack the ethos of liberal democratic constitutionalism. They are already more interested in maintaining the illiberal order, in which they believe – mainly because they have already been packed. Illiberal constitutional courts could be detected, beyond their composition, if we also study the procedures, which tend to be abusively initiated or discretionally invented and reinvented, and the content of their decisions whose quality of reasoning starts to become low, and which shows a pattern of serving either one or two masters. We should not be misguided by their initial or occasional pretense of being the defender of fundamental rights or engaging in a meaningful dialogue with other courts. Instead, we should be alarmed by the first signs of changes, starting with their packing and use of abusive judicial review. Otherwise, the abusiveness of their constitutional review, from the perspective of the ethos of liberal constitutionalism, will become the norm and the standard of the illiberal regime, and we will be facing, most probably unpreventable, the dangers illiberal constitutional courts mean.

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Published on July 21, 2021
Author:          Filed under: Analysis
 

What’s New in Public Law


Matteo Mastracci, PhD Researcher, Koç University, Istanbul


In this weekly feature, I-CONnect publishes a curated reading list of developments in public law. “Developments” may include a selection of links to news, high court decisions, new or recent scholarly books and articles, and blog posts from around the public law blogosphere. To submit relevant developments for our weekly feature on “What’s New in Public Law,” please email iconnecteditors@gmail.com.

Developments in Constitutional Courts

  1. Poland’s Constitutional Tribunal declared that the interim measures imposed by EU’s Court of Justice (in the case C-204/21) on the Polish judicial system affecting the powers of the Disciplinary Chamber of the Supreme Court conflict with the Polish Constitution.
  2. Romania’s Constitutional Court ruled against a bill introduced by the government coalition which provides for a minimum experience required for anti-corruption magistrates.
  3. Spain’s Constitutional Court ruled that strict home confinement included in a national state of emergency to curb the first wave of COVID-19 infections last year was unconstitutional.
  4. The Constitutional Court of the Slovak Republic declared the suspension of the effectiveness of the Public Health Authority (ÚVZ) ordinance that changed the rules for travelling across borders.
  5. The Constitutional Court of Ukraine declared the constitutionality of the Law of Ukraine “On Ensuring the Functioning of the Ukrainian Language as the State Language” regulating the use of the state language in the field of consumer service.
  6. The Constitutional Court of Zimbabwe dismissed the appeal filed by human rights lawyer Musa Kika requesting the judges’ recusal from the case of Chief Justice Luke Malaba.
  7. The European Court of Justice ruled that employers can prohibit workers from wearing headscarves or other religious symbols when it is necessary to present a neutral image towards customers or to prevent social disputes

In the News

  1. Demonstrations took place in France against plans to restrict restaurants and cultural spaces to those that have been vaccinated or recently tested negative for COVID-19.
  2. Indonesia’s parliament ratified a new autonomy law for the Papua region aimed at boosting development in the poorest area.
  3. Several groups signed a statement against the Cambodian government’s inability to conduct an independent investigation into the death of prominent political analyst Kem Ley
  4. The European Commission started legal steps against Hungary’s law banning LGBTQ content for minors and Poland’s “LGBTQ-free” zones.
  5. The Pakistani parliament passed a bill that criminalizes torture and prevents killings in custody by police or other government officials.
  6. The rector of Boğaziçi University in Istanbul, Melih Bulu, has been suspended from his post by a presidential decree after months of protest by several student associations.
  7. The Supreme Court of Nepal restored its parliament, which was dissolved by interim prime minister KP Sharma Oli in May and ordered his rival Sher Bahadur Deuba to be appointed as prime minister.

New Scholarship

  1. Brendan Sweetman, The Crisis of Democratic Pluralism. The Loss of Confidence in Reason and the Clash of Worldviews (forthcoming, 2022) (developing a novel approach to pluralist disagreement and reinterpreting the relationship between religion, secularism and politics)
  2. Claire O. Finkelstein and Richard W. Painter, Presidential Accountability and the Rule of Law: Can the President Claim Immunity If He Shoots Someone on Fifth Avenue?, 24 University of Pennsylvania Journal of Constitutional Law (2021) (discussing the concept of presidential immunity and contrasting the idea that presidential immunity is part of presidential powers under Article II of the Constitution)
  3. Erin R. Pineda, Seeing Like an Activist. Civil Disobedience and the Civil Rights Movement (2021) (exploring the role of civil disobedience of the Civil Rights Movement and advocating the importance of civil activism)
  4. Maurice Adams and Mark Van Hoecke (eds.), Comparative Methods in Law, Humanities and Social Sciences (2021) (discussing how comparative methodologies work from different disciplines and perspectives)
  5. Raymond Wacks, The Rule of Law Under Fire? (forthcoming, 2022) (offering both historical and empirical analysis on the major risks and challenges to the rule of law)
  6. Zaid Al-Ali, Arab Constitutionalism. The Coming Revolution (2021) (offering a thorough account on post-Arab Spring constitutionalism in the Middle East)

Calls for Papers and Announcements

  1. Bilgi IT Law Institute & KUIS AI invites applications for the “International Summer School on AI: on the trail of human rights, democracy and the rule of law” to be held from August 2 to September 30, 2021. The application deadline is July 26, 2021
  2. LUISS University, Department of Political Science, invites applications for one research grant (of 20 months) on the area of “Societal challenges in the Twenty-first century EU: comparing research and innovation cultures and processes” under the supervision of Prof. Robert Schuetze. Deadline for applications is July 19, 2021, 2 p.m. CEST.
  3. The Australian Feminist Law Journal (AFLJ) Editorial Board welcomes papers for the upcoming AFLJ Special Issue on ‘Conceptualisations of Violence’. Deadline for abstract submissions is November 15, 2021. The Special Issue will be published in June 2022.
  4. The Doctoral Programme Democracy Studies and DemocracyNet invites submissions for the research workshop on the topic of “Vested Interests and Democracy”, which will take place at the University of Zurich on December 9-10, 2021. Abstract should be sent by September 10. Researchers interested in attending without presenting should apply by October 1, 2021.
  5. The EU-funded COST Action “Constitution-making and deliberative democracy” (CA17135) invites papers for the Conference “Under-Representation, Direct Democracy and Deliberation: Mapping Contemporary Challenges” to be held in Ljubljana next September 7-8, 2021. The deadline for applications is July 30, 2021.
  6. The Indian Yearbook of Comparative Law (IYCL) accepts submission of original pieces across any legal discipline (public or private law) from a comparative lens for the IYCL 2020. Expression of interest together with a brief abstract of the paper must be sent to iycl@jgu.edu.in. Complete papers are expected to be delivered by September 1, 2021.
  7. The Minerva Law Network invites participants to attend “Post-WWII Occupied Germany: Examining the Effect of a Male Majority Military on the Political Power, Legal Rights, and Economic Opportunities of Women in a Female Majority Land,” a public talk by Cornelia Weiss. The event will take place on July 30, 2021.

Elsewhere Online

  1. Andrea Pritoni, What is the role of political science in public debate? A sobering lesson from Italy, The Loop
  2. David Rossiter and Charles Pattie, Another nail – but whose coffin? Redrawing Britain’s constituency map (again) and the future of the UK’s voting system, The Constitution Unit Blog
  3. Haimo Li, The Bolingbrokean Constitutional Argument in John Adams’s 1766 Clarendon Letter, Journal of the American Revolution
  4. Hana Ben Abda, The Provisional Instance of Tunisia: An Insufficient Substitute for a Constitutional Court, IACL-IADC Blog
  5. Mohd Imran, Unpaid Internships at International Courts & Tribunals: An Instrument in Expanding the Gap between the North and the South, Asia Blogs
  6. Paul Gowder, Don’t Count the Constitution Out of the Deep State Battle Yet, Balkinization
  7. Sümeyye Elif Biber, Machines Learning the Rule of Law, Verfassungsblog
  8. Vikram David Amar and Jason Mazzone, New Texas Abortion Statute Raises Cutting-Edge Questions Not Just About Abortion but About the Relationship Between State and Federal Courts, Verdict Justia | US Constitutional Law Blog
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Published on July 19, 2021
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Ius Publicum Network Review | Call for Submissions after ICON·S 2021 Mundo Conference


Gabriella M. Racca, University of Turin


After the great success of the ICON·S 2021 Mundo Conference “The Future of Public Law”, the IUS Publicum Network Review invites professors, academics, researchers and scholars who are interested in publishing the paper they presented at the ICON·S 2021 Mundo Conference, to submit it for review and publication. Papers may be submitted by email to: coordination.iuspublicum@gmail.com.

The IUS Publicum Network Review is a network founded by the Board of Directors of Die VerwaltungDiritto amministrativoPublic LawRevista de administración pública and Revue française de droit administratif, with the aim of following the evolution of Public Law in each country involved, highlighting its influences on the development of Administrative and Public European Law and its connections with other legal cultures.

The International Journal of  Constitutional Law and the Diritto Pubblico joined the network in 2015.

The Ius Publicum Network Review is available online for free and all contributions are published in open access on polythematic issues.

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Published on July 15, 2021
Author:          Filed under: Developments
 

The First Week of the Chilean Constitutional Convention

Lucas MacClure, Boston College

The Chilean Constitutional Convention has begun the work that will lead, one hopes, to the replacement of Pinochet’s 1980 constitution. In this piece, I summarize the Convention’s first week and highlight themes we comparativists often discuss under the banner of the optimal design of constituent assemblies.[1]

The first week of the Convention began on Sunday, July 4th, 2021, when its 155 delegates met for the first time as a collective decision-making body. The next day, the delegates of the Convention attempted to hold a new session. It was abruptly cancelled and postponed for two days due to logistical problems discussed below. The delegates resumed their work on Wednesday, July 7th, and Thursday, July 8th.

In this short week, the Convention accomplished the following five official acts: First, the delegates inaugurated the Convention. Second, the delegates elected Elisa Loncon as president and Jaime Bassa as vice-president. Third, the delegates decided they will add seven members to the Board of the Convention, for a total of nine. Fourth, the delegates agreed to create a committee in charge of proposing rules to govern the proceedings of the Convention; they also agreed on a committee of budgeting and administration and an ethics committee. Fifth, the delegates approved a declaration that asked Congress and the President to transform how the criminal justice system handles protesters indicted for involvement in the often-violent 2019 demonstrations that originated the constitution-making process.

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Published on July 15, 2021
Author:          Filed under: Analysis
 

New Frontiers of Gender Constitutionalism in Asia (2): Gender Identity and Sexuality

Mara Malagodi, The Chinese University of Hong Kong, Faculty of Law

[Editors’ Note: This is one of our biweekly ICONnect columns. For more information on our four columnists for 2021, please see here.]

In this second post in the two-part series on new frontiers of gender constitutionalism in Asia, I explore the constitutional treatment of gender identity and sexual orientation in the region. Sexual and gender diverse people (SGPD) have made significant yet uneven strides in claiming equal citizenship in the constitutional arena across several Asian jurisdictions. As such, these constitutional innovations warrant detailed and context-specific comparative scrutiny.[1]

Since decolonisation, the great majority of jurisdictions in Asia have adopted in their constitutional and legal frameworks a binary classification of gender as either male or female based on sex assigned at birth, coupled with a heteronormative framing of sexuality. This position reflects a combination of colonial legal legacies (or transplants in the few Asian jurisdictions that were never colonised such as Thailand, Japan, Nepal, and Bhutan) and the cultural and religious norms of dominant groups. The uneven advancement of SGDP rights in the constitutional arena across Asia is explained by the highly context-specific nature of this phenomenon, which hinges on factors internal and external to the constitution. In particular, the strength of social movements and their ability to catalyse change in social attitude towards gender and sexual diversity have a profound impact on legal reform and – most importantly – on the everyday life of queer individuals and groups. Over the last two decades, the constitutional sphere has become both a key instrument to advance SGDP rights and a crucial symbolic target of activism in itself to affirm gender justice.

The advancement of SGDP rights in the constitutional arena can be conceptualised as taking place along two axis: removal of harm (e.g. decriminalisation of certain forms of conduct, constitutional norms and/or legislation forbidding discrimination, etc.) and the granting of positive entitlements (e.g. forms of recognition, affirmative action, quotas, etc.).

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Published on July 14, 2021
Author:          Filed under: Analysis
 

What’s New in Public Law


Claudia Marchese, Research Fellow in Comparative Public Law at the University of Florence (Italy)


Developments in Constitutional Courts

  1. South Africa’s Constitutional Court has found former president Jacob Zuma guilty of contempt of court and sentenced him to 15 months’ imprisonment.
  2. The U.S. Supreme Court, in a 6-3 decision, invalidated a California statute requiring charities to reveal their donors to state officials. The Court stated that the rule had a chilling effect on First Amendment rights.
  3. The U.S. Supreme Court issued a decision on 1 July 2021, ruling that neither the out-of-precinct policy nor Arizona HB 2023 violated the Voting Rights Act. Furthermore, the Court stated that the Arizona H.B. 2023 was not passed with racial discrimination intent.
  4. The Spanish Constitutional Court confirmed the sentences for the assault on the Parliament of Catalonia that took place in June 2011, thus rejecting the appeal presented by the convicted persons.
  5. On 17 July 2021, the U.S. Supreme Court upheld the Affordable Care Act in a decision that leaves the law intact and grants health care coverage for millions of Americans.

In the News

  1. The European Commission sent a letter of formal notice to Germany, the first step in infringement proceedings, concerning the German Constitutional Court’s judgment of 5 May 2020, by which it declared for the first time a judgment of the Court of Justice ultra vires and not applicable in Germany.
  2. On 29 June 2021, the French National Assembly definitively approved – with 326 votes in favour, 115 against and 42 abstentions – a bill that guarantees all women access to heterologous assisted fertilisation, hitherto reserved for heterosexual couples. Single women will also be able to access treatments.
  3. On 25 June 2021, a law authorizing euthanasia came into force in Spain. The law allows people with incurable diseases to resort to euthanasia and assisted suicide.
  4. The European Parliament adopted a resolution condemning the repression of opposition political parties in Turkey, particularly the Peoples’ Democratic Party HDP, and urged the Turkish Government to ensure that all parties can freely and fully exercise their legitimate activities in accordance with the basic principles of a pluralist and democratic system.
  5. The European Parliament adopted a resolution on breaches of EU law and of the rights of LGBTIQ citizens in Hungary.

New Scholarship

  1. O. Pollicino, Judicial Protection of Fundamental Rights on the Internet (2021) (exploring how the Internet impacts on the protection of fundamental rights, particularly with regard to freedom of speech and privacy).
  2. B.C. Jones (ed.), Democracy and Rule of Law in China’s Shadow (2021) (examining how democracy and the rule of law function in a series of jurisdictions highly influenced by China’s presence).
  3. F. Meinel, Germany’s Dual Constitution. Parliamentary Democracy in the Federal Republic (2021) (examining the German constitutional system and arguing that it can only be fully understood as a dual structure based on the administrative institutions and the parliamentary democracy).
  4. J. Webber, The Constitution of Canada. A Contextual Analysis (2021) (introducing the Canadian constitution in context).
  5. E. Arban, G. Martinico, F. Palermo (eds.), Federalism and Constitutional Law. The Italian Contribution to Comparative Regionalism (2021) (examining the relationship between central government and local institutions, taking Italy as a case study to present a comparative perspective).
  6. R. Levy, I O’Flynn, H.L. Kong, Deliberative Peace Referendums (2021) (examining examines the role of referendums amid conflict).
  7. A. Krzywón, Summary Judicial Proceedings as a Measure for Electoral Disinformation: Defining the European Standard, German Law Journal, 22, 2021 (exploring the topic of electoral disinformation in a comparative perspective).
  8. M. Tigre, A. Kasznar, A. Harrington, N. Urzola, A. Bernal, H. Evans, A. Van Der Kleyn, Las respuestas del Sistema Interamericano durante la pandemia por COVID-19: El desarrollo de los derechos humanos verdes en casos de pueblos originarios a nivel nacional y regional, Revista de Derecho Ambiental, 15, 2021 (analyzing the jurisprudence of the Inter-American Court of Human Rights in relation to the right to the environment of indigenous peoples).
  9. A. Shinar, Freedom of Expression in Israel: Origins, Evolution, Revolution and Regression, in A. Barak, B. Medina, Y, Roznai (eds.), Oxford Handbook on the Israeli Constitution (forthcoming 2021) (the essay provides an overview and critique of the protection of free expression in Israel).

Calls for papers and Announcements

  1. The Taiwan Studies Young Scholar Award (YSA) is open to applicants who are currently enrolled on a Master’s degree or PhD programme, or who are within three years of having submitted their PhD dissertation but are not currently in a full-time lectureship. Papers should correspond to ‘Isles and Exiles’, the theme of the 19th Annual Conference of the European Association of Taiwan Studies (EATS). The deadline is 15 September 2021.
  2. The Robert Schuman Centre for Advanced Studies offers the opportunity for established post-doctoral scholars and senior practitioners, who work in one of the core research areas of the Centre, to spend a period between two or eleven months as visiting fellows. The deadline to apply is 30 November 2021.
  3. The EUI (the Departments and the Robert Schuman Centre for Advanced Studies) organises a pre-selection of candidates interested in applying for Marie Sklodowska-Curie Postdoctoral Fellowships with the EUI as a host institution. The deadline is 1 September 2021.
  4. The British Association of Comparative Law (BACL) annual webinar will be held on 31 August 2021. The conference will be dedicated to “The regulation of hate speech online and its enforcement in a comparative perspective”.
  5. The Fondation Maison des Sciences de l’Homme (FMSH) provides scientific, material and financial support for the initiation of innovative projects concerning the following themes: “Ecological transition and social justice: Inventing new operating models” and “Populism and democracy”. The call for projects supports research projects in the development phase. The deadline for submission is 20 August 2021.
  6. The GNHRE calls for contributions on the ratification and implementation of the Escazú Agreement. Particularly, the GNHRE invite regional perspectives from Latin America and the Caribbean on human rights and the environment and the effects of the Escazú Agreement on the existing national legal framework

Elsewhere Online

  1. D.R. Cameron, EU challenges Orbán, approves new sanctions on Belarus, discusses what to do about Russia, Yale MacMillan Centre
  2. M. Everson, C. Joerges, Taking the Law Seriously? Observations on the PSPP Judgement and the Quest for Infringement Proceedings, Verfassungsblog
  3. S.D. Bechtel, The new EU Climate Law. Symbolic Law or Governance Framework?, Verfassungsblog
  4. F. Ferreira, O. Sterck, D.G. Mahler, B. Decerf, Taking poverty seriously in assessing the global welfare burden of the pandemic, LSEBlog
  5. Z. Truchlewski, W. Schelkle, J. Ganderson, Bypassing democracy or buying time for democracies? The EU and COVID, LSEBlog
  6. M.A. Tigre, Principle 10: what can we learn from its regional implementation through the Escazú agreement), Pathway to the 2022 Declaration
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Published on July 12, 2021
Author:          Filed under: Developments
 

The BBI at the Kenyan Court of Appeal | Part I: The Role of the Court in Referendums


Richard Albert, Professor of World Constitutions and Director of Constitutional Studies, The University of Texas at Austin


The Court of Appeal of Kenya recently concluded four days of oral argument on the constitutionality of the Building Bridges Initiative Constitutional Amendment Bill (BBI), a proposed mega-constitutional amendment bill that would quite substantially reform the Constitution of Kenya.

This post is the first in a short series of reflections on the BBI as we approach the date of the Court’s judgment, expected on August 20.

I begin with a question that is central to constitutional amendment in Kenya and to the future of the BBI, but that has not received nearly as much attention as the constitutionality of the BBI itself:

Does Chapter 16 of the Constitution of Kenya require putting the BBI to voters in a national referendum as (1) an omnibus Constitutional Amendment Bill or (2) as a series of separate and individual amendment proposals?

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Published on July 10, 2021
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Using Digital Constitutionalism to Curb Digital Populism

Emilio Peluso Neder Meyer, Federal University of Minas Gerais and National Council for Scientific and Technological Development, Brazil, and Fabrício Bertini Pasquot Polido, Federal University of Minas Gerais, Brazil

On January 6, 2021, the world watched on live stream the result of years and years of political extremism being dumped into American society. Radicalized supporters of Donald Trump, most of them QAnon members, stormed the Capitol under revolutionary chants, “Make America Great Again” caps and confederate flags. Some of them specifically targeted the Congressmen who were in the process of certifying the 2020 election results. The actions resulted in the death of four people.

This episode was just one of the many expressions of how dangerous digital populism can be. Digital populism is here referred to as the use of internet platforms to attack democratic constitutional institutions. Due to the radicalization of online political discourse, especially under the guise of a supposedly limitless freedom of expression, ungoverned digital platforms fostered an already aggravated polarization, which has a lot to do with the infrastructure of these business models.

In the case of former president Donald Trump, who had his account suspended by Facebook, the company’s Oversight Board recommended that it should not only clarify the requirements of the sanctions it applied, but also that it restrict his suspension and provide more transparency. The Oversight Board also indicated that publications could be targeted if they can propel violence and especially in the case of accounts that belong to heads of state, as well as other users with a broad range of followers. The platform limited Trump’s account suspension for up to two years, but was not convincing in offering full transparency.

It is necessary to develop ways to properly moderate content online, especially in the case of public figures and political leaders. However, one must also uncover the roots of the core issues related to the existing situation of content governance on the internet. The analysis of the way in which platforms profit via digital populism  represents a crucial step towards better content oversight, especially if governed by what we will call digital constitutionalism.

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Published on July 10, 2021
Author:          Filed under: Analysis